LAW RELATING TO SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

TEN THINGS TO KNOW ABOUT LAW RELATING TO SEXUAL HARASSMENT AT WORKPLACE

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2012 is an act "to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment.” 

The brutal gang rape of a social worker in Rajasthan in 1997 brought to the attention of the Supreme Court of India, the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places.  

This resulted in India finally enacting its law on prevention of sexual harassment against female employees at the workplace. 

With reference to the Vishaka Guidelines the law hopes to redress as well as prevent cases of sexual harassment in all workplaces across India. 

Here are the 10 key features of VISHAKA guidelines:

1. The law applies to women harassed in the workplace including women working as domestic workers, daily wagers, temporary or permanent, full-time or part-time, as well as volunteers. The women may or may not be employed and can be of any age. The law is only applicable to women and women only. 

2. Sexual harassment includes any one or more of the following unwelcome acts or behavior: 

Physical contact or advances A demand or request for sexual favours Making sexually coloured remarks Showing pornography Any other unwelcome physical, verbal or non-verbal conduct of sexual nature  If the following circumstances exist in relation to any behavior, that is, if any act is done under the following circumstances that would also count as sexual harassment:

Implied or explicit promise of preferential treatment in employment Implied or explicit threat of detrimental treatment in employment Implied or explicit threat about her present or future employment status Interferes with work or creates an intimidating/hostile/offensive work environment Humiliating treatment likely to affect her health and safety. 

3. The act of harassment can occur in the workplace and also if a woman is harassed while visiting a place arising out of or during the course of employment including transportation provided by the office, a complaint can be filed under this Act.

4. The Act requires all workplaces to set up Internal Complaints Committees to address the issue of sexual harassment. There will also be a Local Complaints Committee for each District where complaints can be filed.

5. An aggrieved woman can file a complaint within 3 months of the incident (or later if allowed by the committee). 

6. The Act provides the option of a settlement between the aggrieved woman and the responded through conciliation but only on the request of the woman. However, money compensation cannot be a basis for the settlement. 

7. The inquiry has to be completed within 90 days.

8. In case of malicious complaints or false evidence, the Committee may take action against the woman/person. However, simply not being able to prove an allegation will not mean that it is a false/malicious complaint.

9. The identity of the aggrieved woman, respondent, witnesses as well as other details of the complaint cannot be published or disclosed to the public/media. 

10. The Act also hopes to prevent such incidents by placing a duty on employers to hold regular workshops/awareness programmes as well as, display the consequences of harassment in the workplace. Every employer has a duty to provide a safe working environment to all employees.

Sexual harassment of women at workplace bill 2012 passed by Lok Sabha

The Bill on the Sexual Harassment at the Workplace [The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012] got passed by the Lok Sabha on 3rd September, as news sources put it, ‘amidst the protests over Coalgate’.  India did not have any legislation to deal with sexual harassment at the workplace and in that sense, the bill is a welcome addition. So far the ‘law’ for the purpose of dealing with ‘sexual harassment at the workplace’ emanated from the operative Guidelines on Sexual Harassment at the Workplace, issued by the Supreme Court of India in 1997, in the case of Vishaka v. State of Rajasthan. Under Article 19 (1) g of the Indian Constitution, all citizens have been granted the right to practice any profession, or to carry on any occupation, trade or business. Vishaka established that a logical consequence of incidents, which result in violation of the fundamental rights of ‘Gender Equality’ and ‘Right to Life and Liberty’, is that it causes a violation of the victim’s fundamental right under Article 19 (1) g. The Vishakha guidelines recognized that sexual harassment is not just a personal injury to the affected woman but violates a woman’s right to equality at the workplace. The guidelines shifted the onus for ensuring employees’ safety and gender equality to the employer and institutions, whether it is in the government or the private sector and the employer was made responsible for implementing both preventive and remedial measures to make the workplace safe for women.

The campaign around a law for sexual harassment at the workplace was to ensure an access to a safe workplace by the woman following guidelines laid down by the Apex court in Vishakha. In 2010, more than 10 years after Vishakha, the Bill was introduced in the Lok Sabha on December 7, 2010. The 2010 version of the bill defined sexual harassment at the work place and created a mechanism for redressal of complaints through ‘internal complaints committee’ in the workplace or ‘local complaints committee’ at the district and block level. However, there was a hiccup, in the nature of action being sought to be taken against false or malicious charges. The Parliamentary Standing Committee that submitted its report in June 2011, had recommended removal of ‘malicious’ and retention of ‘false’. The present version of the bill, to the dismay of activist and lawyers, retains the contentious S 14 calling for action against the complainant in case the “internal committee or the local committee as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the compliant knowing it to be false…” The danger in this is that the entire purpose of Vishakha and this law is defeated.Complaint ‘not proved’ does not mean that the complaint is false. There are remedies under the ordinary law (e.g. defamation) to resort to if the complaint is found to be ‘false’. Second, how is malice to be determined? Such provision will have a chilling effect and a woman will hardly if ever make a complaint when sexually harassed. A Bill seeking to remedy complaints of the most under reported crime needs to do away with such provision.  Are members of complaints committee competent to measure if complaints are made ‘maliciously’? The answer is a clear ‘No’.

The bill in S 13 visualises a two stage enquiry process. Even after the inquiry committee has found that sexual harassment has taken place,it is required to send the report to the disciplinary committee for action under the Service Rules. This means that the employer will start another enquiry on the same complaint again in accordance with law, Public servants will then have to face an enquiry under Central discipline rules. The woman will have to lead evidence again and subject herself to cross examination again as per the Central Civil Service Rules and there will be a fresh report and the report will then have to go to the disciplinary authority for deciding the punishment. The application of the service rules that require cross examination of witness etc do not provide the adequate safeguards to the complainant as is required in a case of sexual harassment at workplace.  There is no justification why a complainant should depose twice. Witnesses may or may not be willing to depose twice. Private sector employers also have rules which require enquiries to be held according to the rules and it is not clear if they too will conduct a second enquiry. The value of the Internal complaints committee is being completely undermined by Sec 13 (3)(i).

In contrast to this , the Supreme Court of India in Medha Kotwal has clarified that the report of the complaints committee is final and that the disciplinary authority can only deal with the punishment but not start a second stage enquiry.

“Complaint committee as envisaged by the Supreme Court in its judgment in Vishaka’s case, (1997) 6 SCC 253, will be deemed to be an inquiry authority for the purpose of central Civil Services (Conduct) Rules 1964 (Hereinafter called CCS Rules) and the report of the complaints Committee shall be deemed to be an inquiry report under the CCS rules. Thereafter the disciplinary authority will act on the report in accordance with the rules.”

This means that enquiry is not required to be conducted again but that the disciplinary authority will only decide the punishment after giving to the employee an opportunity to make a representation against the report and on punishment.  This section must be appropriately modified.

The Bill does not cover members of the armed forces. Women in the the armed forces must be covered as there is a high rate of sexual harassment in the armed forces , judging from complaints that have come to court in the last decade. It must also be remembered that the  Armed forces are in any event heavily male dominated  and the chain of command is strong and entrenched.  Enquiries are held behind closed doors putting women in the Armed forces at a disadvantage to begin with. There is no need to exclude such women from the purview of the act as no strategic or other interests are affected by protecting them against sexual harassment  at the workplace.

That complaints must be made within 3 months is also unwarranted. Women who survive sexual harassment and other forms of gendered violence may not and cannot approach a grievance redressal mechanism in the immediate aftermath.

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