No woman shall be subjected to sexual harassment at any workplace, mandates a new law in India. Though sexual assault and rape are prominent forms of violence against women, women do frequently face intimidating or repressive types of inappropriate sexual behaviors at workplace. Woman who refuses to submit to sexual adventures of those in power are many a time victimized at workplace. The victims often undergo severe stress, strain and trauma. Such harassments not only injure the affected woman, but also violate a broad range of rights she is endowed with such as right to live with dignity, right to practice a profession in a safe environment and right to have equality at the workplace. The repressive act of sexual harassment needs stern action and the perpetrators undoubtedly deserve stringent punishment. Now a reasonable law is in place in India to deal with sexual harassment at workplace to a great extent but its implementation is a difficult task in a women unfriendly environment. The first thing to do to make the law work is to make its legal provisions known to the stakeholders of the law.
The legislative timeline
The legislation to prevent sexual harassment of women at workplace recently passed by both houses of Parliament is the first law in India to deal with sexual harassment at workplace. The Lok sabha, on 11th March 2013, gave its final assent to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill by accepting the minor amendments that the Rajya Sabha had made on February 26th. The Lok Sabha had initially passed the bill with other provisions on 3rd September 2012. It will now become a law when the President accords his assent on the bill and gets notified in the Gazette. The rules required to implement and monitor of the law are to be made to put the legislation to operation.
The predecessor of this legislation was the landmark judgment of the Supreme Court (SC) in the case Vishaka vs State of Rajasthan, a rape case involving a social worker in Rajasthan in 1997. The judgment outlined a set of guidelines – Guidelines on Sexual Harassment at the Workplace – for prevention and redress of complaints on sexual harassment of women at workplace. The verdict defined the concept of sexual harassment, laid down duties of employers to deal with it and stipulated formation of committees to dispose of complaints on sexual harassment at workplace, for the first time in India.
Sexual harassment defined
Sexual harassment refers to a broad range of unwelcome sexually determined behaviors. They include physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual nature. It may range from gender based taunting to unsolicited physical contact to coerced intercourse. The sexual gestures, offensive remarks, vulgar stares, embarrassing jokes or distasteful comments might fall within the operation of the law. Any sexual act that undermines women’s sense of personal dignity is an offence of sexual harassment.
Physical sexual harassment may include pinching, grabbing, hugging, patting, leering, brushing against and touching. Psychological harassment may include relentless proposal for physical intimacy, beginning with subtle hints which may later lead to overt request for sexual favours. The court decisions in other countries indicate that a mere utterance of epithet may not be sufficient to constitute sexual harassment. To consider as offensive it should be ‘severe’ or ‘pervasive’. Simple teasing is an uncivil behavior but may not constitute an offence of sexual harassment. But the safer option is not to engage in anything that may fall within the scope of sexual harassment.
The essential ingredients in sexual harassment are that the conduct must be unwelcome, sexual in nature and disadvantageous to the complainant in her recruitment, promotion or work. In short the concept of “sexual harassment” is given an all-encompassing definition which includes non-verbal harassment as well.
Kinds of harassment
There are two kinds of harassment; hostile environment harassment and quid pro quo harassment.
Hostile environment harassment refers to the kind of harassment that women confront at the workplace remains offensive, derogatory, demeaning or intimidating to the women. On the other hand quid pro quo harassment – quid pro quo which means something in return for something – consists of demands for sexual favours accompanied by threats of adverse consequences in jobs like denial of promotion, loss of benefits or workplace conveniences, if the request is denied. It includes any implied promise, explicit or implicit threat, unnecessary intimidation in work or humiliating threat, to obtain a sexual favour.
Law covers unorganized sector
The law covers women in organised and unorganised sector including the private sector. Organizations in health, education, industry, financial services, sports and any conceivable work place where a woman is employed come under the law’s operation.
It covers domestic worker who is employed to do domestic work in any household for remuneration whether in cash or kind, either directly or through any agency or temporary, part time or full time basis, but does not include any member of the family of the employer. However the law does not cover members of the armed forces.
Employer to institute a no-harassment policy
The law mandates the employers to provide a safe work environment devoid of sexual harassment to their women employees. Employers have to take preventive and remedial measures to make the work environment safe for women, failing which they will be punished. Employer is liable for not taking reasonable precautionary measures to prevent sexual harassment.
The employers are mandated to formulate a policy which prohibits sexual harassment as part of institution’s service regulations as a precautionary measure to provide a healthy workplace environment. The no-harassment policy should contain clear information as to what constitutes an act of sexual harassment. The policy should have a clause that defines sexual harassment to be a form of ‘employment misconduct’ punishable under the service rules. The policy in addition to prohibiting sexual harassment should explain penalties, outline grievance procedures, indicate additional resources like facility for conciliation, list of contact persons for consultation etc. It should also include a policy section which shows how it ensures impartiality in investigation.
The Officer responsible for implementing the law is the head of the institution with regard to a department, organization, undertaking, establishment, enterprise, institution, office, branch or unit unless any other officer is assigned the responsibility by any specific order. In all other kinds of workplace any person responsible for the management, supervision and control of the workplace is the responsible officer.
As well the officers under the central and state governments have been assigned certain responsibilities to make the law work.
Internal grievance handling
The law outlines the structure of committees – an internal complaints committee for the institutions with ten or more employees and a district level local complaints committee for the other institutions – to be set up for handling grievances.
All offices, hospitals, institutions and other workplaces with 10 or more employees should mandatorily set up an Internal Complaints Committee (ICC) to handle complaints related to sexual harassment in the respective office. The employer should nominate the committee members and constitute the committee. The committee should include a woman from the senior position in the institution as presiding officer, another senior woman as a member, two other employees as members and a non-governmental member. At least half of the members should be women having commitment to the cause of sexual harassment. The committee may not perform well unless its members are persons with right social and legal perspective. The members can hold office for a period not exceeding three years.
At the district level, the District Officer (normally the Collector or someone), an officer as authorized under the act, should constitute a Local Complaints Committee. The committee will handle complaints in the whole district which are not handled by the ICC. The LCC should consist of an eminent social worker as chairperson, a woman from the block/municipality as member, two representatives (one to be woman) from non-governmental sector as members, one SC/ST person as member and the social welfare officer as ex officio member.
A Nodal Officer will, as well, be nominated by the District Officer for each block, municipality or tribal area to receive complaints and to forward them to respective ICC/LCC within seven days.
Both the complaints committees mentioned have the powers of a civil court for ensuring evidence. However, the members need not require any legal background nor do they need to undergo any legal training as per the law.
Complaint handling mechanism
An aggrieved woman can make a complaint in writing to the Internal Complaints Committee, within three months from the incident. If the internal complaint committee is not in place, the complaint will have to be filed before the Local Complaints Committee.
The law provides for mediation as the first step in complaint handling. If an aggrieved woman demands conciliation between her and the respondent, the Complaints Committee is bound to conduct conciliation before initiating an inquiry. The conciliation should not be on monetary basis. If a settlement is reached through conciliation the complaint committee should not inquire the issue further but close the issue and a conciliation report to the district officer, the complainant and the respondent. If a conciliation agreement fails or a settlement is violated or no request from complainant for conciliation exists, the committee should then proceed with an inquiry as provided for in the service rules.
If the committee, during the inquiry, finds that there is a prima facie evidence of serious criminal nature, the complaint will have to be passed on to the police within seven days. The police should take further action on the complaint treating it as an allegation on ‘outraging the modesty of woman’ under Indian Penal Code (IPC) Section 509. The offence under IPC 509 is a cognizable, bailable and compoundable (a private nature offence) one. The court, when settling the case, can award a payment to the aggrieved on account of emotional distress, mental trauma or pain, as well.
The committee should then conduct a detailed inquiry. The inquiry should be completed within 90 days. During the inquiry the committee has authority to recommend to the employer to transfer either the complainant or respondent to different location or to grant leave of absence to the complainant as rules stipulate so as to avoid face to face contact. The employer is bound to implement the recommendation.
On completion of the inquiry, the committee will have to submit its report with its recommendations to the disciplinary authority of the institution within ten days. If the complaint is genuine, the report should suggest disciplinary actions commensurate with the nature of sexual harassment. Since sexual harassment amounts to ‘misconduct in employment’, the disciplinary authority will have to take disciplinary action, as per in the service rules. Disciplinary action may include compensation to be paid to the complainant by the respondent. The complaint committee can decide the quantum of compensation to the complainant in tune with the gravity of offence and the stipulation in the rules.
During the inquiry, principles of natural justice should be followed. That means both the parties should be given an opportunity of being heard. As well a copy of the findings may be made available to them to enable them to make representation. The respondent should get a chance to rebut the evidences against him. On the other hand if charges framed are vague and indefinite it will be a negation of reasonable opportunity for the victim and that would be a violation of fairness.
The ICC/LCC is endowed with the power of a civil court to enforce attendance of people, discovery of evidence and production of documents. The ICC/LCC is deemed to be an inquiry authority and its report an inquiry report.
A person who is not an employee, but who perpetrates harassment within the workplace of the employee, is also recognised by the law. It is the duty of an employer or person in charge a workplace to prevent sexual harassment by a third party – a casual visitor there.
The onus of punishing the offender is on the employer. The cases of sexual harassment of women at workplace will have to be disposed of by in-house committees (that must be set up) within a period of 90 days.
If the employer fails in this duty, a penalty of Rs. 50,000 would be imposed. Repeated non-compliance with the provisions of the legislation can attract twice the punishment and may lead to cancellation of licence or registration to conduct his business.
Provision against false charges
A law of this kind is amenable to misuse. The person against whom charges have been made goes through enough trauma and social ostracism during the tenure of enquiry. So the section 14 of the law makes it clear that if anyone makes a “malicious” or false complaint or produce any misleading document that will attract punishment. Such action on the complainant will have to be taken only after establishing her malicious intent through an inquiry. The provision shows a prudent balancing approach between the aggrieved and the respondent. A mere inability to substantiate a complaint or provide adequate proof need not attract punitive action. So the fear of misuse of the provision need not deter a woman from making a complaint.
However there is a growing tendency among people to avoid any negative publicity of being indifferent to sexual harassment which may indirectly influence the committee /employer to propose/take disciplinary action regardless of what the investigation revealed or whether any misconduct actually had occurred.
Right to information
The contents of the complaint, the identity and addresses of the complainant, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations and the action taken shall not be published, communicated or made known to the public, press and media in any manner. So the details of the case are now outside the purview of the Right to Information Act, 2005.
The law prevents media trial of victim. To put the act into implementation, the Central government will have to notify the rules. It is a sad story that a case-law in Vishaka case in 1997 delivered by a great judge of our times – Justice J S Verma – had to wait sixteen years to become a legislative law on a crucial topic like sexual harassment of women in a country considered to be the largest democracy in the world. It certainly reminds us that our dysfunctional democracy requires a better regime of ‘rule of law’.
This legislation casts a great responsibility on the people at large and the women activists in particular to make the law work for the purpose for which it is made. Obvious misuse of the law may defeat its purpose in due course as history indicates. Discouraging any misuse of the law is necessary precaution for maintaining its effectiveness. This does not mean that patent harassments should be ignored but trivial ones should not be pressed unduly.
1. Supreme Courts Guidelines in Vishaka Case 1997
2. The 239th Report of the Rajya Sabha on the Protection of Women against Sexual Harassment at Workplace Bill 2010
3. The bill as passes by the Lok Sabha on 3rd September 2012
4. NCERT Policy on Prevention of Sexual Harassment against Women at Workplace (a model of a policy)