This article is written by Priyanka Sharma.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Sexual Harassment Act) was passed by the Parliament and came into force from 9th December 2013. It was enacted to ensure a safe working environment for women. It provides for protection to women at their workplace from any form of sexual harassment and for redressal of any complaints they may have launched. The Act was formed on the basis of the guidelines laid down by the Supreme Court in its landmark judgement, Vishakha v. State of Rajasthan (where sexual harassment was first defined) but is much wider in scope, bringing within its ambit the domestic worker as well.
Prohibited conduct and definition of sexual harassment
The act has been introduced to curb sexual harassment at workplace – ‘sexual harassment’ is defined as any advances to establish physical contact with a woman, a demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other form of physical, verbal or non-verbal conduct of sexual nature. The following circumstances amongst others constitute may also constitute as forms of sexual harassment, – implied or explicit promise of preferential/detrimental treatment at the workplace, implied or explicit threat about her present or future employment status, interference with her work and/or creating an intimidating or offensive or hostile work environment for her, and humiliating treatment likely to affect her health or safety.
The Act will ensure that women are protected against sexual harassment at all work places, be it public or private, organised sector or even the unorganised sector, regardless of their age and status of employment. The act also covers students in schools and colleges, patients in hospital as well as a woman working in a dwelling place or a house.
The Act creates a mechanism for redressal of complaints and safeguards against false or malicious charges. Under the act, employers who employ 10 employers or more 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 that may extend to Rs. 50,000. If, however, they still fail to form a Committee, they can be held liable for a greater fine and may even lead to cancellation of their business license. Every employer with a business or enterprise having more than 10 workers will have to constitute a committee known as ‘Internal Complaints Committee’(ICC) to look into all complaints of sexual harassment at the workplace. Further, in every district, a public official called the District Officer will constitute a committee known as the ‘Local Complaints Committee’ (LCC) to receive complaints against establishments where there is no Internal Complaints Committee or there being a complaint against the employer himself. This committee would further handle all complaints of sexual harassment in the domestic sphere as well as those coming from the unorganised sector.
Key Obligations of the Employer
#1 – Constitution of the Internal Complaints Committee
Every employer, with more than 10 employees,shall constitute an ‘Internal Complaints Committee’ at the workplace and wherein the offices or administrative units of workplace are located at different places, he will, constitute a committee in all such offices and administrative units.
Membership of the Internal Complaints Committee.
It will consist of the following members (to be nominated by the employer):
- A Presiding Officer who shall be a woman employed at a senior level at the workplace, unless there is no senior women employee at the office or any other administrative unit. In that case the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation.
- At least 2 members from amongst the employees either committed to cause of women or who have experience in social work or have legal knowledge.
- One member from a Non-Governmental organisation or association committed to the cause of women and familiar with the issues relating to sexual harassment. This member shall not be part of the employer’s enterprise. Provided that one-half of the total members must be women.
The Presiding Officer and Members of the Internal Committee hold office for 3 years from the date of the nomination as specified by the employer. The member from the NGO or association shall be paid such fees or allowance, by the employer, as may be prescribed. The details of the complaints are confidential and if any member of the Committee, be it the Presiding Officer, discloses any details of the same to the media or press or makes it public in any way, will be liable for immediate disqualification from the Committee. Further, if any member has been convicted or accused of any offence under any law, has been found guilty in any disciplinary proceeding/has a disciplinary proceeding pending against him as per any law or has abused his position in any manner, he/she shall be removed from the Committee.
For all establishments having less than 10 workers, or for a COMPLAINT AGAINST HER EMPLOYER, the aggrieved woman will approach the Local Complaints Committee which is a body to check instances of sexual harassment at the district level.
Every complaint must be given in writing to the Internal Complaint Committee within a period of 3 months, from the date of the incident. An extension of a period 3 months can be granted to the woman if she, due to certain circumstances, is unable to file the complaint or is prevented from doing so. If however, she is unable to lodge the complaint due to physical or mental incapacity or death; her legal heirs may do so.
# 2 – Preparation of an Annual Report by the employer
The act casts a duty on employers to include information pertaining to the number of cases filed and disposed of by them in their Annual Report. Organisations which are not under a requirement to prepare an Annual Report have to furnish this information directly to the Local Complaints Committee, which will prepare an Annual Report of its own to be forwarded to the appropriate government.
What is the procedure followed by the complaint committee to resolve a complaint?
The following are the guidelines that need to be followed by the members of the ICC:
- When the ICC receives a complaint, it must seek to resolve the issue by way of conciliation if the complainant so wishes. However, no monetary settlement can be the basis of the conciliation. If there is a settlement, a report must be sent by Committee, to the employer to take action in accordance with the recommendations of the Committee.
- If however no conciliation can be met with, the ICC must start an inquiry into the complaint. All inquiries must be completed within 90 days. However, in case of a domestic worker, the LCC must transfer the complaint to the police, within 7 days of the complaint, for registering the case under section 509, or any other relevant section, of the Indian Penal Code, if according to them a prima facie case exists.
- For the purposes of making an inquiry, the ICC shall has similar powers as a civil court – it can summon and enforce attendance of any person, examine him on oath, order production of documents, etc.
- During the pendency of the inquiry interim relief may be granted to the aggrieved woman. The ICC may recommend the employer to
- Transfer the aggrieved woman or the respondent to any other workplace.
- Grant leave to the aggrieved woman up to a period of 3 months.
- Grant such other relief as may be prescribed.
- On completion of the inquiry, the committee must submit its recommendations to the employer, within 10 days. The employer must act on those recommendations within 60 days in accordance with the conclusions of the inquiry.
Actions that can be taken by the employer after inquiry
If the respondent is found not guilty, the inquiry will end. If, however, his guilt is proven, then the employer must:
- Deduct from the salary or wages of the person who has engaged in sexual harassment, an appropriate sum which can be paid to the aggrieved woman (or to her legal heirs).
- Take action for sexual harassment as misconduct in accordance with the service rules applicable to the respondent (in case of a government agency). In case of private organizations, the employer can take such actions including a written apology, warning, reprimand or censure, withholding of promotion, pay rise or increments, terminating the respondent from service or carrying out community service or counselling session.
False and malicious complaints
What can be done if a woman has filed a false complaint of sexual harassment against a colleague, a senior or a junior employee? If the ICC or LCC is of the view that a malicious or false complaint has been made, it may recommend that a penalty be levied on the complainant in accordance with applicable service rules. However, an inquiry must be made in order to establish malicious intent. Also, mere inability to substantiate a complaint will not attract action under this provision.
Consequences of non-compliance with the act
Employers who fail to comply will be punished with a fine that may extend to Rs. 50,000. If any employer who has been convicted earlier of an offence subsequently commits a repeat offence he will be liable for twice the punishment, which may have been imposed on a first conviction. Further, his license for carrying on business may even be cancelled.
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Long departed are the days when men used to be the lone breadwinners of a family. Globalization has brought a profound change in the status of women worldwide. However, with the larger invasion of women in the mainstream workforce of India, sexual harassment at workplace has assumed greater aspects. Workplace sexual harassment is a form of gender bigotry which violates a woman’s fundamental right to equality and right to life, assured under Articles 14, 15 and 21 of the Constitution of India. Organisational sexual harassment not only creates a timid and unreceptive working environment for women but also thwart their ability to deliver in today’s competing world. Apart from interrupting with their performance at work, it also sceptically affects their social and commercial growth and puts them through physical and emotional discomfort.
India’s primary legislation precisely marking the issue of workplace sexual harassment; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was executed by the Ministry of Women and Child Development, India in 2013. The Government also successively notified the rules under the POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. The year 2013 also substantiated the revelation of the Criminal Law (Amendment) Act, 2013 which has criminalized offences such as sexual harassment, stalking and voyeurism.
Statement of Objects and Reasons, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The POSH Act has been discoursed with the target of preventing and looking after women against workplace sexual harassment and to safeguard efficient redressal of grievances of sexual harassment. While the statute goals at providing every woman (regardless of her age or employment standing) a harmless, protected and honourable working environment, free from all sorts of harassment, proper operation of the provisions of the statute remains a challenge. Even though the law averting sexual harassment at workplace has been enforced since 2013, there rests absence of precision on different dimensions referring to the statute, involving what comprises sexual harassment, responsibilities of an employer, remedies/defences available to the victim, method of investigation, etc. Several are also not fully mindful of the criminal consequences of sexual harassment. Lustful jokes, inappropriate comments etc. are terminated as normal, with women being doubtful to instigate actions due to apprehension of being questioned or scorned; which underpins the need for better awareness and superior enforcement.
Any tool would be hopeless if the person operating it is heedless of the way it is to be used. Therefore, the aim of this paper is to aid as a equipped reckoner to all the stakeholders and re-instruct them on the law linking to workplace sexual harassment.
Unfolding of the Law on Workplace Sexual Harassment
The abolition of gender-built discrimination has been one of the fundamentals of the Constitutional network of India. The value of gender parity is enshrined in the Constitution, in its Preamble, fundamental rights, fundamental duties and Directive Principles. However, workplace sexual harassment in India, was for the very initial time documented by the Supreme Court of India in its landmark judgment of Vishakha v. State of Rajasthan, in which the Supreme Court mounted definite guiding principles and delivered directions to the Union of India to enact a fitting law for tackling workplace sexual harassment. Not less of an irony, the POSH Act and the POSH Rules was indorsed 16 years after the Vishaka Judgement. In the nonexistence of a definite law in India, the Supreme Court, in the Vishaka Judgment, placed down certain guidelines creating it mandatory for each employer to run a mechanism to redress grievances connecting to workplace sexual harassment (“Vishaka Guidelines”) which were being abided by employers until the depiction of the POSH Act.
The Vishaka Judgement
In 1992, Bhanwari Devi, a Dalit woman working with the rural development program of the Government of Rajasthan, was inhumanly gang raped on account of her efforts to curtail the then prevailing practice of child marriage.
This incident disclosed the hazards that working women were open to on a day to day basis and tinted the urgency for safeguards to be realized in this regard.
Women’s rights activists and lawyers filed a public interest litigation in the Supreme Court of India below the banner of Vishaka. The Supreme Court of India, for the first time, recognised the glaring legislative shortfall and workplace sexual harassment as a human rights destruction. In outlining the Vishaka Guidelines, the Supreme Court of India placed confidence on the Convention on Elimination of All Forms of Discrimination against Women, assumed by the General Assembly of the United Nations, in 1979, which India has both authorized and approved. As per the Vishaka judgment, ‘Sexual Harassment’ contains such unwelcome sexually defined conduct (whether directly or by implication) as:
- Physical contact and advances;
- A call or invitation for sexual favours;
- Sexually coloured remarks;
- Showing pornography;
- Any other undesirable physical, verbal or nonverbal handling of sexual nature.
- Post Vishakha – Some Other Judgments
Apparel Export Promotion Council v. A.K Chopra
The Vishakha judgment set off a nationwide dissertation on workplace sexual harassment and thrusted out wide open an issue that was brushed off under the carpet for the stretched time. The first case before the Supreme Court after Vishakha in this regard was the case of Apparel Export Promotion Council v. A.K Chopra.In this case, the Supreme Court recapitulated the law spread down in the Vishaka Judgment and upheld the removal of a superior officer of the Delhi placed Apparel Export Promotion Council who was found guilty of sexually harassing a junior female employee at the workplace.
In this judgment, the Supreme Court expanded the interpretation of sexual harassment by directing that physical contact was not necessary for it to amount to an action of sexual harassment. The Supreme Court elucidated that “sexual harassment is a shape of sex discrimination propelled through objectionable sexual advances, demand for sexual favours and other verbal or physical treatment with sexual connotations, whether directly or by implication, particularly when compliance to or repudiation of such conduct by the female employee was adequate of being used for stirring the employment of the female employee and irrationally interfering with her work execution and had the reaction of constructing an intimidating or inimical work environment for her.”
Medha Kotwal Lele & Ors. V. Union of India & Ors. A letter penned by Dr. Medha (an NGO) displayed a number of individual cases of sexual harassment affirming that the Vishakha Guidelines were not being effectively actualized. Transforming the letter into a writ petition, the Supreme Court took cognizance and commenced monitoring of execution of the Vishakha Guidelines across the country by leading State Governments to file affidavits highlighting on the steps taken by them to embark the Vishakha Guidelines. In its judgment, the Supreme Court perceived that “the appliance of the Vishakha Guidelines has to be not only in form but also in substance and spirit so as to make achievable secure environment for women at workplace in every regard and thereby empowering working women to work with poise, decency and due respect.’ Not being contented with the application of the Vishakha Guidelines, it directed States to put in place adequate mechanisms to certify valuable implementation of the Vishaka Guidelines. Finally, the Supreme Court declared that in case of a non-obedience or non-compliance of the Vishaka Guidelines, it would be open to the mistreated persons to approach the respective High Courts.
April 23, 2013 The POSH Act obtained the President’s sanction and was published in the Gazette of India. The Indian Ministry of Women and Child Development notified December 09, 2013 as the effective date of the POSH Act and the POSH Rules.
Key Provisions of the POSH Act
Aggrieved Woman: As per the POSH Act, an ‘aggrieved woman’ in respect to a workplace, is a woman of any age, whether employed or not, who alleges to have been imperilled to any act of sexual harassment. It requires that a woman shall not be exposed to sexual harassment at her workplace.
It may be observed that for a woman to claim protection under POSH Act, the occurrence of sexual harassment should have taken place at the ‘workplace’.
What amounts to Sexual Harassment? The POSH Act defines ‘sexual harassment’ in line with Supreme Court’s description of ‘sexual harassment’ in the Vishaka Judgment. As per the POSH Act, ‘sexual harassment’ includes undesirable sexually tinted behaviour, whether direct or by implication.
The Act directs certain obligations upon an employer which involves:
- Fostering a gender sensitive workplace and eradicating the primary factors that support towards creating a hostile working situation against women;
- articulate and widely circulate an internal policy or agreement or resolution or assertion for exclusion, prevention and redressal of sexual harassment at the workplace;
- display evidently at the workplace, the punishing consequences of indulging in such acts;
- combine workshops and awareness programmes at regular intervals for briefing employees on its concerns and implications;
- cause to initiate action, under the Indian Penal Code, 1860 (“IPC”) or any other law in force, against the offender, or if the aggrieved woman so desires, where the offender is not an employee, in the workplace at which the event of sexual harassment took place;
- aid the aggrieved woman if she so opts to file a complaint in relation to the offence under the IPC or some other law for the time being in force.
The Anti-Sexual Harassment Policy
- Clearly define ‘sexual harassment’ and outline the range and applicability;
- Reveal how the employer exercises zero-tolerance about sexual harassment at workplace;
- Extended concept of workplace;
- Grievance mechanism;
- Regularly distribute and promote the policy at all levels of the organization;
- Make Sure that the policy is easily accessible;
- Deliver a version of the policy to new joinees as part of their induction;
- Evaluate the policy periodically & renew information regarding IC members etc. on a timely basis.
Instances of Acts relating to Sexual Harassment
Whether an act or behaviour would sum to ‘sexual harassment’ is dependent on the aspects of the act and the circumstances.
The following is a suggestive list of acts that could be considered as sexual harassment:
- Undesirable sexual advances or proposals;
- Annoying for dates or receiving uninvited sexual suggestions or invitations;
- Displaying sexually expressive objects or images, cartoons, calendars or posters;
- Making or using deprecating comments, comments about a person’s body or dress, slurs, monikers or sexually lewd jokes;
- Bodily conduct such as unsolicited touching, assault, obstructing or blocking movements;
- Forcing or threatening reprisal after a negative answer to sexual advances or for reporting or warning to report sexual harassment;
- Gender centred insults and/or sexist remarks;
- Indicating or implying that failure to accept a call for a date or sexual favours would harmfully affect the individual in regard to performance evaluation or promotion;
- Explicitly or implicitly hinting sexual favours in consideration for hiring, compensation, promotion, retaining decision, relocation, or allocation of job/responsibility/work;
- Any act or manner by a person in authority and belonging to one sex which refutes or would deny equal chance in pursuit of career development or otherwise making the environment at the work place hostile or intimidating to a person belonging to the other sex, only on the ground of such individual delivering or refusing sexual favours;
- Physical confinement contrary to one’s will and any other act possible to violate one’s privacy.
Other Laws Pertaining to Workplace Sexual Harassment
- I. Industrial Employment (Standing Orders) Act, 1946 is a central enactment which requires an employer to express and publish uniform terms of employment in the form of standing orders.
The Standing Orders Act prescribes Model Standing Orders, aiding as guidelines for employers and in the event that an employer has not framed and certified its own standing orders, the terms of the Model Standing Orders will be applicable.
It imposes a list of acts forming ‘misconduct’ and specifically includes sexual harassment.
The Model Standing Orders not only defines ‘sexual harassment’ in line with the definition under the Vishaka Judgment, but also foresees the obligation to set up a complaints committee for redressal of grievances concerning to workplace sexual harassment.
- Indian Penal Code, 1860 Conduct that may be interpreted as sexual harassment not only violates the Prevention of Workplace Sexual Harassment Act, but also could amount to an offence under the IPC.
354 Outraging the modesty of a woman Assault or use of criminal force to any woman, intending to outrage or knowing it to be likely that modesty would be outraged.
354-B Assault or use of criminal force to woman with intent to disrobe.
Assault or use of criminal force to any woman or abetment of such act with the intention of disrobing or compelling her to be naked.
Watching, or capturing the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image.
Following a woman and contracting or attempting to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or Monitoring the use by a woman of the internet, email or any other form of electronic communication.
After Analysis and Conclusion
Sexual harassment at workplace has remained a constant tussle for women for a long time, nonetheless the introduction of POSH in 2013 has certainly played a significant role in supporting women all across the nation.
The existence of the act has led to noteworthy awareness on the concerns of sexual harassment. Various surveys conducted showed that 77% of the organisations complied fully with the act. About 45% of the respondents felt safer in their workplaces and 91% agreed to enhanced awareness of the act. The act has in addition stirred the media enough to provide ample recognition of the issues faced by women at workplaces.
Despite the progressive influence of the act, there have been numerous instances where well known public figures have still been observed to behave in a manner that shows blatant disregard to the dignity of women and the purpose of POSH.
One such case is of the famed journalist and former editor-in-chief of the tehelka magazine, Tarun Tejpal.
In 2013, a female colleague accused Tejpal of rape and sexual harassment.
The event occurred during the Think festival hosted by the magazine in Goa’s five-star hotel, Bambolim, where the junior colleague was allegedly assaulted by Tejpal in a lift.
On 30th November, he was arrested but has been out on bail, since May 2014.
The allegations have been denied by Tejpal throughout.
Tejpal was charged under Sections 376(2) (rape), 354A (sexual harassment) and 342 (wrongful confinement) of the Indian Penal Code (IPC), by a trial court in Goa, in September 2017.
Furthermore, the Supreme Court denied any relief to Tejpal in his appeal. The court stated that the case was “morally abhorrent” and “serious”. The trial court in Goa has been asked to conduct the trial quickly.
The hearing is still pending.
Another such instance again took place in 2013 itself involving the renowned former justice A K Ganguli.
A law student, under the internship of the former Supreme Court judge, complained of his unwelcomed advances. She alleged in her affidavit that Justice Ganguli had sexually harassed her on the 24th of December in a hotel room in Le’ Meridian hotel between 8:30pm to 10pm when they were working on their reports.
The intern complained that the former justice asked her to go into his hotel room and drink wine and relax. Upon her refusal, he told her he loved her, and he was attracted to her and kissed her arm.
She stated that she felt “uneasy”, “unsettled” and “disturbed” by the judge’s suggestions.
She submitted an affidavit of his unwelcome behaviour to the apex court panel.
Justice Ganguli vehemently denied the accusations.
The consequences of her allegations becoming public forced him to step down as the chairman of the West Bengal Human Rights Commission. (WBHRC).
A further occasion is the case of R K Pachauri that occurred in 2015.
A former work colleague accused the executive vice chairman of sexual harassment. Pachauri was charged under Section 354 (outraging modesty of a woman), Section 354A (sexual harassment) and Section 509 (words used to outrage the modesty of a woman) by the Saket court.
A charge sheet was also filed against Pachauri under the Nirbhaya Act on 1st March 2016.
The aforementioned cases are just three of the various incidents that have taken place in India, even after the institution of the Prevention of Sexual Harassment Act, 2013. In Mumbai it was noticed that there were 54% increases from 371 in 2014 to 570 in 2017 with regards to registered cases of sexual harassment.
There are approximately two cases reported nearly every day.
The sharp rise in the cases shows that the introduction of the act has certainly made women more confident in speaking up against their mistreatment. Whereas earlier these cases would have just remained uncovered, they are now exposed and within easy grasp of public awareness.
India also observed its own Me-Too movement. This has encouraged many women to share their own harassment experiences. For a long period, women were afraid to speak up against harassment as they feared the consequences. But the voices against sexual harassment at workplaces have grown fiercer.
Moreover, it was perceived from the above-mentioned cases that action has been taken against the accused and they have not been able to hide behind the curtain of their prominent professions.
With the justice on the side of the aggrieved women and their tribulations, India is bound to become a safer country for all women.
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