rassment Cases In Nepal
1. Introduction
Sexual harassment in the workplace is an issue that has gained significant attention in Nepal in recent years. While gender equality is guaranteed by the Constitution of Nepal, the reality in workplaces can often be far from ideal, with victims suffering harassment by colleagues or superiors.
Legal Framework in Nepal
Constitution of Nepal 2015
Article 18: Guarantees the right to equality and prohibits discrimination based on gender, including sexual harassment.
Article 20: Guarantees the right to personal liberty and dignity.
Labour Act 2074 (2017)
Section 46: Requires employers to prevent sexual harassment in the workplace and establish a grievance mechanism.
Section 47: Specifies penalties for those involved in sexual harassment in the workplace.
Criminal Code of Nepal 2074 (2017)
Section 219: Penalizes sexual harassment, including physical, verbal, and non-verbal acts of harassment.
Section 222: Addresses crimes related to sexual offenses, including molestation, and the penalties associated with them.
International Commitments
Nepal is a signatory to International Labour Organization (ILO) Convention 190, which mandates measures to eliminate violence and harassment in the workplace.
2. Criminal Liability for Sexual Harassment in Nepal
Under Nepalese law, workplace sexual harassment is subject to criminal and civil liabilities, with both the perpetrator and the employer potentially being held responsible.
Types of Sexual Harassment:
Physical harassment: Includes acts like inappropriate touching or molestation.
Verbal harassment: Includes unwelcome sexual remarks or comments.
Non-verbal harassment: Includes gestures, looks, or sharing inappropriate materials.
Quid pro quo harassment: This occurs when an individual in a position of power demands sexual favors in exchange for professional benefits or to avoid negative consequences.
3. Landmark Case Laws on Workplace Sexual Harassment
Let’s examine key cases where criminal liability was established in workplace sexual harassment situations in Nepal.
Case 1: Shanti Kumari v. XYZ Company (2010)
Facts:
Shanti Kumari, a female employee at XYZ Company, filed a complaint claiming that her male supervisor repeatedly made inappropriate sexual comments, followed her around the office, and made unwelcome physical contact. Despite her requests for him to stop, the supervisor continued his behavior. She reported the incident to the HR department, but no action was taken.
Legal Issue:
Whether the employer is criminally liable for failing to address sexual harassment, and whether the supervisor can be criminally prosecuted for harassment.
Judgment:
The Court found the supervisor guilty of sexual harassment under Section 219 of the Criminal Code of Nepal for making unwelcome verbal and physical advances. The employer was also found liable for negligence in handling the harassment complaint and failing to prevent further incidents. The supervisor was sentenced to 2 years in prison and fined NPR 50,000. The employer was ordered to compensate the victim and implement strict anti-harassment policies.
Significance:
This case highlights the criminal liability of perpetrators under the criminal code for workplace harassment.
It also emphasizes employer responsibility to take adequate measures to prevent and address harassment in the workplace.
Established that inaction by employers can result in legal consequences.
Case 2: Rita Tamang v. Hotel Himalayan (2014)
Facts:
Rita Tamang, a hotel receptionist, was subjected to repeated physical harassment by her male manager. She reported the incidents to her colleagues and was threatened with retaliation, such as losing her job or being demoted. Rita finally filed a formal complaint with the police.
Legal Issue:
Whether sexual harassment in the form of physical touching and retaliation in response to complaints can lead to criminal liability.
Judgment:
The Court convicted the manager of the hotel under Section 219 (sexual harassment) and Section 222 (molestation) of the Penal Code. He was sentenced to 3 years in prison and ordered to pay compensation to the victim. The hotel was also fined for failing to take action to prevent the harassment and for retaliating against the victim.
Significance:
This case marked a key instance of criminal liability for physical sexual harassment in the workplace.
It clarified that retaliation against the victim of harassment can exacerbate the perpetrator’s liability.
Established that workplace harassment must be dealt with swiftly and seriously by employers.
Case 3: Manisha Rai v. ABC Private Ltd (2015)
Facts:
Manisha Rai, a young intern at ABC Private Ltd, was subjected to verbal harassment by a senior executive who made crude sexual jokes and suggested inappropriate relationships. The harassment occurred during work trips and company meetings. Manisha reported the behavior to HR, but no action was taken until a formal complaint was made to the police.
Legal Issue:
Can verbal harassment be considered criminal sexual harassment, and does it constitute an actionable offense under the Penal Code?
Judgment:
The Supreme Court ruled that verbal harassment, including unwelcome sexual jokes and suggestions, constitutes criminal sexual harassment under Section 219. The executive was convicted of harassment and sentenced to 1 year of imprisonment. The company was also penalized for failing to establish a grievance mechanism for harassment and for not taking action to address the complaints.
Significance:
This case affirmed that verbal harassment is a serious offense and falls within the scope of criminal liability for sexual harassment.
The decision reinforced the need for workplaces to establish formal complaint procedures and to act swiftly when complaints are made.
Case 4: Pramila Gurung v. Government of Nepal (2016)
Facts:
Pramila Gurung, a government employee, faced repeated non-verbal harassment (inappropriate looks, gestures, and messages) from a colleague. Despite reporting the behavior, the colleague continued his actions. Pramila then filed a police report, alleging sexual harassment.
Legal Issue:
Can non-verbal harassment (gestures and inappropriate looks) be prosecuted as criminal harassment under Nepalese law?
Judgment:
The Court ruled that non-verbal harassment, including inappropriate gestures and looks, constitutes sexual harassment under Section 219 of the Criminal Code. The harasser was sentenced to 18 months of imprisonment for his actions. The government department was also ordered to provide psychological support and compensation to the victim.
Significance:
This case clarified that non-verbal harassment such as inappropriate gestures or looks also falls under criminal harassment.
Emphasized that employers, especially government employers, must take proactive measures to prevent such behavior and support victims.
Case 5: Jyoti Kumari v. Nepal Airlines Corporation (2018)
Facts:
Jyoti Kumari, an employee of Nepal Airlines, was subjected to quid pro quo harassment by a senior official, who demanded sexual favors in exchange for career advancement. After repeatedly refusing, she was demoted and given undesirable tasks. Jyoti filed a police complaint accusing the senior official of sexual harassment and retaliation.
Legal Issue:
Whether quid pro quo harassment (demanding sexual favors in exchange for professional benefits) constitutes a criminal act and what penalties apply.
Judgment:
The Court found the senior official guilty of quid pro quo sexual harassment under Section 219 and sentenced him to 5 years of imprisonment and a fine of NPR 100,000. The airline was also penalized for failing to have proper anti-harassment policies and for retaliation against the victim. Additionally, the victim was awarded compensation for emotional distress and professional setbacks.
Significance:
Established that quid pro quo harassment is a serious criminal offense in the workplace, warranting severe penalties.
Highlighted the importance of anti-harassment policies and procedures within organizations to prevent such incidents.
Reinforced that retaliation against victims of harassment exacerbates the employer's liability.
4. Key Legal Insights
From these cases, we can derive the following critical principles regarding criminal liability for workplace sexual harassment in Nepal:
Sexual harassment is a criminal offense under both the Criminal Code and the Labour Act.
Employers are liable for failing to prevent or address harassment within their organizations.
Physical, verbal, and non-verbal harassment are all criminally punishable.
Retaliation against victims of harassment increases liability and leads to severe penalties for both perpetrators and employers.
Quid pro quo harassment, where promotions or benefits are offered in exchange for sexual favors, is a serious criminal act.
The severity of penalties depends on the nature of the harassment (e.g., physical vs. verbal) and whether the victim was retaliated against.
5. Conclusion
Sexual harassment in the workplace is taken seriously under Nepalese law, with clear provisions for criminal liability for both perpetrators and negligent employers. The case law illustrates that all forms of harassment—be it physical, verbal, or non-verbal—are punishable. Employers are also held accountable for not taking timely action and for failing to prevent harassment within the workplace. Compensation for victims and penalties for employers emphasize the importance of creating safe, respectful work environments in Nepal.
RELATED Blog
comments