This article is written by Anushka Trivedi, a student of UPES Dehradun.
“When your story doesn’t match the truth, don’t change the truth to match your story”
INTRODUCTION
In 1997, the Hon’ble Court of Supreme Court in Vishaka’s Case acknowledged for the first time sexual harassment at workplace and then laid down some guidelines called as Vishaka’s Guidelines and made it mandatory for the employers to comply the same and prevent the commission of any act of sexual harassment at workplace and had even provided for the procedure for the resolution, settlement and prosecution of any employee who had been found sexually harassing the women employee at workplace. The Guidelines issued was taken as a ‘Law’ as declared by the Apex Court of India. Though it was mandatory for all the employers to follow the guidelines but later it was observed by various courts that the guidelines were not strictly followed in many of the workplaces.
The increasing rate of women participation in workplaces made it necessary for the Legislature to enact Act focusing on prevention of Sexual Harassment at workplace as well as redressal to the same. The Act is named as, The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Sexual Harassment Act (Hereby called as an ‘Act’) was finally enacted in the year 2013 for the prevention of sexual harassment against women at workplace in the whole of India. The main objective of the act was protection of Women, prevention and redressal of sexual harassment complaints. Sexual harassment has been termed as a violation of basic Fundamental Rights of women under Article 14 and 15(3) that deal with Right to Equality and State shall not be prevented to make any special provision related to Women and Children respectively. And right to life and to live with dignity under Article 21 of the Constitution of India. Sexual Harassment is also considered as violation of the right to practice any profession or to carry on any trade, occupation or business under Article 19(1) (g) of the Constitution of India.
Internal complaints Committees:
The act made it mandatory for every employer to constitute a Committee which would be entertaining the complaints of aggrieved women. The members of the ‘ICC’ should consist of: i) a Presiding Officer, ii) not less than two members from amongst the employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge and iii) one member from amongst non-governmental organizations or associations committed to the cause of women employees.
Local Complaints Committees:
The act is also required to make local complaints committees for every district where the ICC has not be formed due to less than 10 workers.
Complaint procedure:
According to the Act, the aggrieved Women is required to make a written complaint of the same to the ICC or LCC within three months from the date of incident and when there are series of incidence then three months from the last incident. If the woman is unable to make a complaint in writing then proper assistance can be given by the presiding officer or any member of ICC or by the Chairperson or any member of the LCC.
According to the rules of the said act if a woman is unable to make a complaint due to her physical incapacity then the complaint can be made by her friend or her co-worker or any Officer of the National commission for Woman or State Women’s Commission or any person having the knowledge of the incident, with the prior written permission of the aggrieved woman.
CONSTITUTIONAL CHALLENGES
In a recent order by the Central Administrative Tribunal (CAT), the court had questioned certain provisions of the Sexual Harassment of Women at Workplace Act, 2013. The CAT Bench comprising of Judges KB Suresh and PK Pradhan said,
“Section 4 and 7 of the Act can be termed as unconstitutional because once an adjudicatory body is to be determined as slanted in its sway; it destroys the fairness concept embedded in adjudication.”
Section 4 of the said Act makes it compulsory that at least two members among the Internal Complaints Committee, who are required to deal with sexual harassment cases in the workplace, must be “committed to the cause of women.”
Section 7 says that the Local Committee constituted under the said act the members of the same should be chaired among the “eminent women from the field of social work and committed to the cause of women”. Further in this regard, the Tribunal said that “if members of the committee of the adjudicatory committee are to be committed to an ideology, there mental frame will be such that it would give an opportunity for unwelcomed bias and their finding also will be in resonance of their personal commitment.”
The Central Administrative Tribunal highlights the misuse of the Act, after hearing the four Cases on sexual harassment complaints cases, the CAT had cautioned that the Act of Sexual Harassment is “Double-edged”.
1st Case is commonly known as Whistleblower Case:
In this case three women employees ostensibly used the Sexual Harassment law against the upright Store Officer of Kudermukh Iron Ore Company Ltd named T. Ramesh. He was newly transferred to Mangalore, and restricted the movement of contractors to ensure better inventory control. The company had thanked him for his efforts, as the Central Industrial Security Force had intercepted five Coal loaded trucks being stolen from the Company premises and by his efforts the Company was able to get them back.
Later, three women employee of that particular company filed a written complaint against him, stating that-1st women told that when she told Ramesh that she had lost her Mangalsutra, he remarked that she should wear the same inside. And this remark according to the Women Employee was computed as ‘Sexually Colored’.
2nd Women told that Ramesh use to sit close to her and put his hand on her chair while dictating letters to her, 3rd women made the complaint against the Ramesh stating that he use to remark’s about her as Riding Pillion with a male colleague of that Office only.
Ramesh after this had approached the CAT. The bench observed a conspiracy involving the women employees and contractors which had led to the “silly complaints” whose intentions were to silence the whistleblower.
The Bench said that:
“the proceeding of the Vishakas Committee were flawed and manipulated.”
The term ‘cause of women’ states that people who are appointed to be the member of the committee are from the very beginning gender biases. They have their mind setup to hear and give judgment in the favor of the women only. They are made to think that women are always correct and they should be privileged. There had been observation made by the CAT and many cases were found where the fraudulent complaints have been registered by the women against the innocent men. And the judgments by the committee are given in their favor only. The other party is not allowed to be heard. For eg. In the case which is commonly known as ESI Officer’s Case: This case was on P. Jagannath, a Senior Officer of the Employees State Insurance Corporation (ESIC), he had an unblemished record and was to retire soon. He had challenged his repeated transfers at the behest a Trade Union, which has been used by the women employee as a weapon against him.
The women employee complaint was that Jagannath had shouted on her when she had faced a problem in the Office. As she had not reported for eight days and when she returned back, she found herself to be marked absent in red ink by him. And his act was described as ridiculous strict on her part.
Though she had no intention to make a sexual harassment complaint but the authorizes had formed a Vishaka Committee, examined the two witnesses, and transferred him as a punishment.
When Trade Union observed punishment not to be enough, Jagannath was transferred to Chennai’s Branch. The Bench wondered what relevance the Vishaka’s Committee had in such a case, especially when the complainant’s behavior was unbecoming of a government servant, and could amount to forgery, which is a criminal offence. The entire hierarchy was terrorized and Jagannath was penalized by the Court and his transfer was cancelled and he was posted to his original place.
The court found the law ‘double-edged’ and allowed Jagannath to file for damages, if any incurred by him in the due course of such proceeding.
Another Case is commonly known as National Institute of Mental Health and Neuro Sciences Case (NIMHANS): in this case John Johnson, a psychiatrist at NIMHANS, Bangalore, had been accused of sexual harassment by an MPhil Student after he told her to wear her dupatta properly. Johnson explained that he had said so in the context of a discussion on methodology before students were allowed to test the Psychiatrist patients. And the girl was about to take the interview of a person having sexual problem so as a piece of advice he said that with no intention of sexually harassing her.
But the girl contented while complaining that he said so because he was annoyed by the shape and size of her breast and she had completed her interview she filed the complaint the very next day.
Two units of psychiatry were against each other and were having a long-standing rivalry between them. The complaint against the defendant was signed by five women students and was received by Dr. Reddemma, who was the head of department and was the member of the rival group even.
Later, a Vishaka Committee was formed ad inquiry commenced. That MPhil student did not take any part in that inquiry. Two other male testified it on behalf of Johnson. During the inquiry 2 out of 5 girls were outside the Kerala prior to and after the incident took place.
The bench requested the institute to secure the complainant’s presence but the girl refused to testify, by sending the e-mail to the registrar stating that she had no interest to assist the tribunal but want to stand by her original complaint.
The bench observed that “there is no way of establishing the provenance of this e-mail,” and quashed the proceedings against the Johnson.
Yet another case is commonly known as Live-in-or-Rape? Case: An employee woman in the postal department filed the written complaint against Palaniswami, which had further lead to his imprisonment for six months. She stated that the he had forced her to stay with him in the Government Quarter for two years and ‘raped’ her regularly. When she brought the same to the superintendent, he allegedly started molesting her. She then finally filed a police complaint.
The Vishaka committee recommended that he should be awarded Punishment. And even recommended ‘appropriate action’ against the superintendent. She had lived with Palaniswamy got her a job after a year of their starting the relationship. But later she found that he had planned to get married with the other women.
The bench observed that the girl might have hoped that the person will marry her, but later when she found him deciding to marry another girl she filed the complaint. She alleged that the acts of intimacy between both of them constitute rape against her. While Palaniswamy had alleged that she had taken 1.5 lakh from him and did not return him back. After he had been released on bail he was transferred far away on the recommendation of the committee. Challenging this, she had approached the CAT., the bench observed that the committee had done their work fairly and directed the committee to recognize the human element.
These cases shows how women misused the harassment law and how the committee made were gender biased and gave judgment in favor of the women, knowing that men were not guilty of the acts and there was no sexual harassment on their part.
The cases above mentioned are in violation of the principle of Natural Justice as the person who are appointed as the members of the Complaints Committees have a subject matter bias. As the Men are not allowed to give their explanation and if they are allowed also no consideration is given to their statement, the members are preplanned to give judgment in the favor of the Women only. So this violation has been observed by the CAT and they sought this type of violation by quashing the earlier decision and giving them the right to file the suit for any damages incurred by them. This type of conflicts had been observed many a times in sexual harassment cases even. As the members in the Vishaka committee have pre-conceived notion to give judgment in favor of women.
You can find out more about sexual harassment at workplace by taking up this course by National University of Juridical Sciences. You can also check out this course which will give you an in-depth insight on how to implement sexual harassment laws.
CONCLUSION
Sexual Harassment at the workplace is a universal problem. The Act had been formulated to protect the women from harassment at workplace, which has been recognized as an infringement of fundamental rights of a woman, under Article 19(1) (g) of the Constitution of India “to practice any profession or to carry out any occupation, trade or business”. Though the Act which had come into force in 2013 with the intention of protecting the rights of women, certain provisions of the act which seems to be biased and violates the principles of natural justice need to be amended at the earliest.
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Very badly written piece on an important subject. Please proof-read and edit whatever you publish. The author does not know how to distinguish between incidence and incident..there are a whole lot of proofing errors as well.