The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

 

This is a legislative Act in India that seeks to protect women from sexual harassment at their place of work. It was passed by the Lok Sabha (the lower house of the Indian Parliament) on 3 September 2012. It was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26 February 2013. The Bill got the assent of the President on 23 April 2013. The Act came into force from 9 December 2013.

 

The Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in Vishaka v. State of Rajasthan (1997). Article 19 (1) g of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business.

 

Vishaka v. State of Rajasthan established that actions resulting in a violation of one’s rights to ‘Gender Equality’ and ‘Life and Liberty’ are in fact a violation of the victim’s fundamental right under Article 19 (1) g. The case ruling establishes that sexual harassment violates a woman’s rights in the workplace and is thus not just a matter of personal injury.

 

Under the Act, which also covers students in schools and colleges as well as patients in hospitals, employers and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees.

 

Sexual harassment is any unwelcome sexually determined behaviour, such as:-

  • Physical contact
  • A demand or request for sexual favours
  • Sexually coloured remarks
  • Showing pornography
  • Any other physical, verbal or non-verbal conduct of a sexual nature.

 

A person is deemed to have caused sexual harassment if he or she -

  • Subjects another person to an unwelcome act of physical intimacy, like grabbing, brushing, touching, pinching, etc.
  • Makes an unwelcome demand or request (whether directly or by implication) for sexual favours from another person, and further makes it a condition for employment/payment of wages/increment/promotion etc.
  • Makes an unwelcome remark with sexual connotations, like sexually explicit compliments/cracking loud jokes with sexual connotations/ making sexist remarks etc.
  • As per the act, sexual harassment includes any one or more of unwelcome acts or behaviour like physical contact and advances, a demand or request for sexual favours or making sexually coloured remarks or showing pornography.

Thus, it is important that the victim report such behaviour as soon as possible and not wait for it to become worse. In some cases, the psychological stigma of reporting the conduct of a co-worker might require a great deal of courage on the part of the victim and they may report such acts after a long period of time.

 

The guidelines suggest that the complaint mechanism should ensure time bound treatment of complaints, but they do not suggest that a report can only be made within a short period of time since the incident occurred

 

Major Features

  • The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
  • The definition of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
  • While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation.
  • The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
  • Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
  • The Complaints Committees have the powers of civil courts for gathering evidence.
  • The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
  • Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to  50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

 

Employer’s Obligations

Internal Complaints Committee and Local Complaints Committee: The Sexual Harassment Act requires an employer to set up an ‘Internal Complaints Committee’ (“ICC”) at each office or branch, of an organization employing at least 10 employees.

 

The government is in turn required to set up a ‘Local Complaints Committees’ (“LCC”) at the district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer.

 

The Sexual Harassment Act, 2013 also sets out the constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time bound manner.

 

Interim Reliefs: The Sexual Harassment Act empowers the ICC and the LCC to recommend to the employer, at the request of the aggrieved employee, interim measures such as (i) transfer of the aggrieved woman or the respondent to any other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement.

 

In addition to ensuring compliance with the other provisions stipulated, the Sexual Harassment Act casts certain obligations upon the employer to, inter-alia,

  • Provide a safe working environment
  • Display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee
  • Organise workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the Internal Complaints Committee
  • Treat sexual harassment as a misconduct under the service rules and initiate action for misconduct.
  • The employer is also required to monitor the timely submission of reports by the ICC.

 

If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000. A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses.

 

Complaints Mechanism

All women who draw a regular salary, receive an honorarium, or work in a voluntary capacity in the government, private sector or un-organised sector come under the purview of these guidelines.

  • All workplaces should have an appropriate complaints mechanism with a complaints committee, special counsellor or other support services.
  • A woman must head the complaints committee and no less than half its members should be women.
  • The committee should include an NGO/individual familiar with the issue of sexual harassment.
  • The complaints procedure must be time-bound.
  • Confidentiality must be maintained.
  • Complainants/witnesses should not experience victimization/discrimination during the process.

 

Preventive Steps

  • Sexual harassment should be affirmatively discussed at workers’ meetings, employer-employee meetings, etc.
  • Guidelines should be prominently displayed to create awareness about the rights of female employees.
  • The employer should assist persons affected in cases of sexual harassment by outsiders.
  • Central and state governments must adopt measures, including legislation, to ensure that private employers also observe the guidelines.
  • Names and contact numbers of members of the complaints committee must be prominently displayed.

 

Vishakha and others v State of Rajasthan was a 1997 Indian Supreme Court case where Vishakha and other women groups filed Public Interest Litigation (PIL) against State of Rajasthan and Union of India to enforce the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The petition was filed after Bhanwari Devi, a social worker in Rajasthan was brutally gang raped for stopping a child marriage.

 

The court decided that the consideration of “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.”

 

The petition resulted in what are popularly known as the Vishaka Guidelines. The judgment of August 1997 given by a bench of J. S. Verma (then C.J.I)., Sujata Manohar and B. N. Kirpal, provided the basic definitions of sexual harassment at the workplace and provided guidelines to deal with it. It is seen as a significant legal victory for women’s groups in India.

 

From Guidelines to Act

The Supreme Court of India’s judgement only proposed guidelines to alleviate the problem of sexual harassment in 1997. India finally enacted its law on prevention of sexual harassment against female employees at the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Sexual Harassment Act”) has been made effective on April 23, 2013 by way of publication in the Gazette of India.

 

What is sexual harassment?

Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) physical contact and advances; b) a demand or request for sexual favours; c) sexually coloured remarks; d) showing pornography; e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

 

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem.

 

It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

 

Thus, sexual harassment need NOT involve physical contact. Any act that creates a hostile work environment – be it by virtue of cracking lewd jokes, verbal abuse, circulating lewd rumours etc. counts as sexual harassment.

 

The creation of a hostile work environment through unwelcome physical verbal or non-verbal conduct of sexual nature may consist not of a single act but of pattern of behaviour comprising many such acts.

 

Thus, it is important that the victim report such behaviour as soon as possible and not wait for it to become worse. In some cases, the psychological stigma of reporting the conduct of a co-worker might require a great deal of courage on the part of the victim and they may report such acts after a long period of time. The guidelines suggest that the complaint mechanism should ensure time bound treatment of complaints, but they do not suggest that a report can only be made within a short period of time since the incident occurred.

 

Often, the police refuse to lodge FIRs for sexual harassment cases, especially where the harassment occurred some time ago.

 

The Judiciary is also coming down hard on sexual harassment in the Supreme Court. According to an article in the Times of India dated 23rd April 2014, “An Advocate has been barred entry into Supreme Court precincts for six months following an enquiry against him in a complaint of sexual harassment.”

 

“This is the first such order taken by a Court–appointed panel which was formed to look into such complaints in the Apex Court.”

 

“A Circular issued by the Court Registrar said that an enquiry was conducted against Advocate Nagesh by the Supreme Court Gender Sensitization and Internal Complaints Committee and a report with its recommendations was submitted to the Chief Justice of India, thereafter an order was passed by the Chief Justice of India barring him entry in the Supreme Court for six months.”

 

To download the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, click here.

 

This article has been written by Ketaki Jayakar, Advocate.

 

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