At the very outset , I must say that it is unfortunate in the extreme that in recent times we are witnessing a huge surge in complaints by women of sexual harassment at workplace . As things stand , if strongest possible action is not taken against the culprits who dare to sexually harass a woman things will only turn from bad to worse . Culprits will feel more emboldened and women will feel reluctant to enter in any workplace and prefer to stay inside her house . Not stopping here , India’s image will stand completely battered as we saw when the Nirbhaya rape case occurred in December 2012 . This will affect tourism also because foreigners especially women would never like to visit and stay in a country where women are not safe . Many countries have already warned women of their countries to visit India at their own risk .
This all the more explains why India needed a strong legislation to protect women from sexual harassment at workplace . It is concerning to see that even a Supreme Court Judge – Justice ( retd ) AK Ganguly has been accused by a young law graduate who was his intern of sexual harassment . What is even more concerning to note is that the three-judge panel of Supreme Court set up by Chief Justice P Sathasivam comprising of Justices RM Lodha , HL Dattu and Ranjana Prakash Desai which was probing the allegations of sexual harassment levelled by a law intern has held the retired judge prima facie guilty of “unwelcome behaviour” and “unwelcome conduct of sexual nature” with the young lawyer who was interning with him in December 2012 ! However , the Supreme Court has said that “no further follow up action is required by this Court”, since the intern was not on the rolls of the Court , and because Justice Ganguly had retired before the date of the alleged incident , December 24 , 2012 . The law graduate had deposed before the 3-judge panel on November 18 . I must also disclose here that Justice Ganguly throughout his career has always enjoyed a clean image known as a crusader for acting tough against corrupt politicians . It was because of him that A Raja , the former Union Minister had to go to jail and had to exit as telecom minister . He monitored CBI probe into 2G scam and cancelled all 127 licences issued during Raja’s tenure . He had slammed the 1976 judgment of the Supreme Court upholding suspension of fundamental rights during emergency . In 2009 , when Justice Markandey Katju had raised questions on the validity of the 1997 Vishaka guidelines against sexual harassment at workplace , Justice Ganguly wrote a separate judgment supporting the right of the Court to issue orders to fill any vacuum in law in the interest of justice . This alone explains why legal luminaries like Soli J Sorabjee , Ram Jethmalani and former CJI Altamas Kabir came out in his support openly . Sorabjee who is a former Attorney General says that , “Day by day such things are getting more publicity but they should be kept at a certain level . Why should he quit ? We are in the realms of accusations . Suppose it transpires that these allegations were unfounded … Suppose that happens , should he resign now as chairman of the human rights commission ? No , I don’t think so . Because he says these allegations are baseless . If your logic is accepted , anyone in important position must resign when an allegation is made , which the man denies . This will set a dangerous precedent . A Judge needn’t quit on basis of just allegations .” But Anand Grover who is a senior advocate said that , “If Goa police can register an FIR against Tejpal in the absence of a written complaint , why not do the same here … ?” Similarly Kamini Jaiswal who is a very experienced advocate said that , “It is the duty of the Supreme Court to lodge an FIR if a cognizable offence is disclosed .” But the intern herself want no action against Justice Ganguly and that is why she has not lodged any FIR even after an year of the incident ! Even now while I am writing this , she appears in no mood to take any action against her . Why then are politicians baying for his blood ?
Indira Jaising who was earlier an Additional Solicitor General and is an eminent and senior Apex Court lawyer very eloquently wrote in her thought provoking article entitled “Open letter to the Chief Justice of India” dated November 22 , 2013 in ‘The Times Of India’ newspaper that , “While you have constituted a committee of three judges to look into the allegation that a former judge of the Supreme Court sexually harassed an intern , we have not been made aware of the terms of reference to the committee . A full court decision would enhance the credibility of the decision-making process and the profile of the court as an institution which is interested in addressing the issue of sexual harassment at the workplace not only of interns but also of lawyers and staff . An outside member on the committee would remove the impression that a bias was in operation when judging one of your own . Junior women lawyers face sexual harassment by senior lawyers and thanks to the conspiracy of silence around the issue among peers , senior lawyers enjoy impunity . This issue needs to be dealt with by treating such behaviour as an interference with the course of justice and dealt with as contempt of court . Senior lawyers who sexually harass women juniors or any lawyer at the bar must be stripped of their seniority . The message must go that the institution does not tolerate sexual harassment of women . To be honest , the architecture of the court is not women-friendly . The corridors are breeding places for sexual harassment , the courtrooms too small to ensure the dignity of women who have to navigate their way through a human wall of male lawyers . The atmosphere is sexualized . Perhaps we need a new Supreme Court with spaces where we can interact with each other as equal human beings , not as sexual beings . Women have to face sexist remarks from male lawyers and the patronizing attitude of judges . Sexist remarks in petitions , judgments and statements of judges on public platforms are not considered with the seriousness they deserve by the court as an institution . There is no standing committee on gender justice of judges , as there is in most important constitutional courts around the world , to look at the use of sexist language and practices or laws and judgments that need systemic elimination and correction and not just in individual cases by the appeal process . The suggested solution – not to take women interns – is worse than the disease . The court must affirmatively demonstrate equal opportunity for women to make progress in the profession by guaranteeing them a safe working environment . Those who do not sexually harass have nothing to fear from women interns and lawyers . Unless the court as an institution rises to the occasion and takes corrective action , it is in danger of losing its moral legitimacy , a fate too terrible to imagine . It is , after all , the only institution we have to seek justice in the true sense of the word . As a first step , the report of the committee of three judges must be made public as soon as possible so that the impression is not created that the Supreme Court is shielding the brotherhood of judges . After all , unless that is done , all judges will be suspect , those who are gender sensitive and those who are not , and that is not in anyone’s interest . We as women lawyers respect judges who are respectful of us but disrespect judges who disrespect us and other women in words or action . It is our constitutional duty , under Article 51A of the Constitution of India , to renounce practices derogatory of women . At this point of time , the Supreme Court must play a leadership role . To remain silent is to be complicit .”
I very strongly stand in support of protection of women from all kinds of harassment and demand sternest punishment for those who dare to harass them in any manner . There has to be zero tolerance for any offence of any kind against women and no cause can justify it . Woman has the birthright to dress as she like and live a life of her own choice . This cannot be an excuse to justify any crime against women . However , I have a caveat here . If it is found that a women deliberately defamed any men then she too must be sent behind bars and made to pay huge fine as damage of reputation , mental peace and health and should not be allowed to escape scot free . Even men must have the right not be defamed without any ground and mercifully this is provided in our legal system . In this regard , it would be pertinent to disclose here that Section 14 of this Act of 2013 stipulates punishment for false or malicious complaint and false evidence . It is laid down in Section 14 that –
1. Where 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 complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document , it may recommend to the employer or the District Officer , as the case may be , to take action against the woman or the person who has made the complaint under sub-section ( 1 ) or sub-section ( 2 ) of Section 9 , as the case may be , in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist , in such manner as may be prescribed :
Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section :
Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed , before any action is recommended .
2. Where the Internal Committee or the Local Committee , as the case may be , arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document , it may recommend to the employer of the witness or the District Officer , as the case may be , to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist , in such manner as may be prescribed .
Who can compensate the men who is defamed in front of the entire society for no fault of his and who loses his job , family life and above all mental peace ? No woman has the birthright to level any allegation on any men as per her whims and fancies after getting angry with him on some issue . Woman too must understand this ! But if she is actually sexually harassed , I repeat that not only must there be zero tolerance for such crimes but the women must be protected from being humiliated again and again by raking up her character . In Justice Ganguly case also , the young lawyer said she feels humiliated and has to constantly justify that she is not lying as “Indian law” is not equipped to “sensitively deal with crimes against women”. Necessary amendments must be made in this direction also so that a women feels more secure in coming forward to disclose about any sexual offence committed by any men against her .
Having said this , I must reveal here that close on the heels of this most unfortunate incident , the Supreme Court too came into action and set up its Gender Sensitisation and Internal Complaints Committee . The Supreme Court has set up a Committee to investigate sexual harassment sixteen years after its Vishaka judgment . The Committee will be headed by Justice Ranjana Prakash Desai and will have nine other members , including another Apex Court judge – Justice Madan B Lokur and four lawyers . Other members include a representative from NGO ‘Haq : Centre for Child Rights’ and the director of Rajiv Gandhi Institute for Contemporary Studies . Out of the 10 , there are seven women members in the Committee . Let me also reveal here that the Apex Court had decided to set up the Committee after a PIL by advocates Beenu Tamta and others pointed out that there was no such panel in place to address the sexual harassment complaints of women lawyers , interns and other women employees in the Apex Court premises . Subsequently , the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India ( Prevention , Prohibition and Redressal ) Regulations , 2013 , were notified and the CJI notified the Committee . The Committee’s constitution has come after a delay of more than a month for want of nomination of members by the Supreme Court Bar Association and the Supreme Court Clerks Association .
It is commendable to note that the Press Council of India ( PCI ) has asked all media organisations to set up internal committees to prevent and redress cases of sexual harassment of women at the workplace . The direction came in the wake of sexual harassment charges against Tehelka founder Tarun Tejpal by a journalist . There was no such internal committee in place in Tehelka prior to this unfortunate incident . But why blame Tehelka alone ? In most of the media houses the condition was not much different . In a statement , PCI chairperson Justice ( retd ) Markandey Katju said that despite Visakha guidelines having been framed by the Supreme Court in 1997 and the enactment of Sexual Harassment of Women at Workplace ( Prevention , Prohibition and Redressal ) Act , 2013 , many media organizations did not have an internal complaints committee . He said Section 4 ( 1 ) of the Act made setting up of these committees mandatory . “Such establishments become even more meaningful in media organisations where women journalists adhere to non-conventional working hours and duty places”, Justice Katju said .
Just recently , a group of junior women advocates on December 5 , 2013 moved the Lucknow bench of the Allahabad High Court , alleging sexual harassment by male colleagues on the court campus . The petition said that the junior women advocates in civil courts and other subordinate court suffer even more . The High Court admitted the petition and set up a panel as per Vishaka guidelines to redress guidelines . I very strongly feel that this should be the norm in every courts throughout the country . A division bench comprising Justice Devi Prasad Singh and Justice Ashok Pal Singh directed its registrar to preside over the panel , which will also include five members of the elders committee of the Oudh Bar Association . The Court nominated additional advocate general Bulbul Godiyal as the woman member of the committee . The bench told the registrar to appoint an officer on special duty for complaints from women lawyers and women in general for incidents taking place on the High Court premises . The committee has been constituted as an interim measure , and the Court would pass its final order later .
Let me reveal here that in the landmark case of Vishaka v. State of Rajasthan AIR 1997 SC 3011 , sexual harassment was defined by Supreme Court as “any unwelcome sexually determined behaviour ( whether directly or by implication ) as physical contact and advances , a demand or request for sexual favours , sexually-coloured remarks , showing pornography or any other unwelcome physical , verbal or non-verbal conduct of sexual nature .” In this case , the Supreme Court while disposing of the writ petition with directions , held that , “The fundamental right to carry on any occupation , trade , profession depend on the availability of ‘safe’ working environment . The right to life means life with dignity . The primary responsibility for ensuring such safety and dignity through suitable legislation , and the creation of a mechanism for its enforcement , belongs to the legislature and the executive . When , however , instances of sexual harassment resulting in violations of Articles 14 , 19 and 21 are brought under Article 32 , effective redressal requires that some guidelines for the protection of these rights should be laid down to fill the vacuum .” It was for the first time in this landmark case that sexual harassment was identified as a separate category of legally prohibited behaviour and certain guidelines were spelled out to be followed in all workplaces until any other legislation is passed by Parliament in this regard . Now for the benefit of my readers , let me dish out those guidelines which the Supreme Court had given in Vishaka case and which are as follows : –
1. Duty of the Employer or other responsible persons in work places and other institutions : It shall be the duty of the employer or other responsible persons in work , places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution , settlement or prosecution of acts of sexual harassment by taking all steps required .
2. Definition : For this purpose , sexual harassment includes such unwelcome sexually determined behaviour ( whether directly or by implication ) as :
( a ) physical contract and advances ;
( b ) a demand or request for sexual favour ;
( c ) sexually coloured remarks ;
( d ) showing pornography ;
( e ) any other unwelcome physical verbal or non-verbal conduct or 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 . Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto .
3. Preventive Steps : All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment . Without prejudice to the generality of this obligation they should take the following steps :
( a ) Express prohibition of sexual harassment as defined above at the work place should be notified , published and circulated in appropriate ways .
( b ) The Rules / Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules / regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender .
( c ) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment ( Standing Orders ) Act , 1946 .
( d ) Appropriate work conditions should be provided in respect of work , leisure , health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment .
4. Criminal Proceedings : Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority . In particular , it should ensure that victims , or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment . The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer .
5. Disciplinary Action : Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules , appropriate disciplinary action should be initiated by the employer in accordance with those rules .
6. Complaint Mechanism : Whether or not such conduct constitutes an offence under law or a breach of the service rules , an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim . Such complaint mechanism should ensure time bound treatment of complaints .
7. Complaints Committee : The complaint mechanism , referred to in ( 6 ) above , should be adequate to provide , where necessary , a Complaints Committee , a special counselor or other support service , including the maintenance of confidentiality .
The Complaints Committee should be headed by a woman and not less than half of its member should be women . Further , to prevent the possibility of any under pressure or influence from senior levels , such Complaints Committee should involve a third party , either NGO or other body who is familiar with the issue of sexual harassment .
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them . The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department .
8. Workers’ Initiative : Employers should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings .
9. Awareness : Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in suitable manner .
10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider , the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action .
11. The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector .
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act , 1993 .
The Supreme Court in this case further held that , “Accordingly , we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women . These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field . These writ petitions are disposed of , accordingly .”
Let me tell you that after a few years of this landmark judgment in Vishaka’s case in which certain guidelines were laid down in order to protect women from sexual harassment , the Centre decided to frame a suitable draft legislation after facing relentless pressure from many women’s organizations . It was termed “The Protection Against Sexual Harassment of Women Bill , 2005” but it could not be passed and it was replaced by “The Protection of Women Against Sexual Harassment at Workplace Bill , 2007” to be tabled in Parliament . It too could not be passed . Finally , it was “The Sexual Harassment of Women at Workplace ( Prevention , Prohibition and Redressal ) Act , 2013 that was passed by the Lok Sabha on September 3 , 2012 and by Rajya Sabha on February 26 , 2013 . It got the assent of the President on April 22 , 2013 and published in the Gazette of India , Extra. , Part II , Section 1 , dated April 23 , 2013 .
Why did it took the Centre 17 years to pass the law against sexual harassment in the workplace and that too only in the wake of the Delhi gangrape in December 2012 which kicked up a huge tsunami of protest , anger and public upheaval even though it was in 1997 that guidelines were laid down in Vishaka case pertaining to it ? Anyway , better to be late than never ! The definition of “sexual harassment” as defined in Section 2 ( n ) of the Act of 2013 is the same as laid down in Vishaka case . Let me also disclose here that the definition of “aggrieved woman” as defined in Section 2 ( a ) of the Act of 2013 is very exhaustive and covers in its ambit all women in relation to a workplace or dwelling place or house of any age as is the case in workplace but in dwelling place or house , only those women are covered who are employed in such a dwelling place or house and not others .
Section 3 of the Act of 2013 very clearly prohibits sexual harassment of a woman . It says that : –
1. No woman shall be subjected to sexual harassment at any workplace .
2. The following circumstances , among other circumstances , if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment : –
( i ) implied or explicit promise of preferential treatment in her employment ; or
( ii ) implied or explicit threat of detrimental treatment in her employment ; or
(iii ) implied or explicit threat about her present or future employment status ; or
( iv ) interferences with her work or creating an intimidating or offensive or hostile work environment for her ; or
( v ) humiliating treatment likely to affect her health or safety .
In Apparel Export Council v AK Chopra , AIR 1999 SC 625 , it was held by the Supreme Court that , “Sexual harassment is gender discrimination against women and any act or attempt of molestation by a superior will constitute ‘sexual harassment’ .” In yet another case , N Radhabai v Ramchandran , AIR 1995 SC 1476 , Radhabai who was the Secretary to D Ramachandran who was the then Social Minister for State attempted to molest her too when she protested against his abuse of girls in the welfare institutions and later she was dismissed . The Supreme Court in its judgment upheld her contention and she got back pay and all perks from the date of dismissal . Further , the Supreme Court took a very strict view in Mrs Rupan Deol Bajaj v KPS Gill AIR 1995 ( 6 ) SC 309 in which it was held that any kind of harassment or inconvenience done to a women’s private or public life will be considered as an offence . Now coming to Section 4 which envisages the ‘Constitution of Internal Complaints Committee’ . It states that : –
1. Every employer of a workplace shall , by an order in writing , constitute a Committee to be known as the “Internal Complaints Committee” :
Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level , the Internal Committee shall be constituted at all administrative units or offices .
2. The Internal Committee shall consist of the following members to be nominated by the employer , namely : –
( a ) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees :
Provided that in case a senior level woman employee is not available , the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section ( 1 ) :
Provided further that in case the other officers or administrative units of the workplace do not have a senior level woman employee , the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization ;
( b ) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge ;
( c ) one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment ;
Provided that at least one-half of the total Members so nominated shall be women .
3. The Presiding Officer and every Member of the Internal Committee shall hold office for such period , not exceeding three years , from the date of their nomination as may be specified by the employer .
4. The Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee , by the employer , as may be prescribed .
5. Where the Presiding Officer or any Member of the Internal Committee , –
( a ) contravenes the provisions of Section 16 ; or
( b ) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him ; or
( c ) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him ; or
( d ) has so abused his position as to render his continuance in office prejudicial to the public interest ,
such Presiding Officer or Member , as the case may be , shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filed by fresh nomination in accordance with the provisions of this section .
Section 26 encapsulates the penalty provision contained in Section26 for non-compliance with provisions of the Act . It states that –
1. Where the employer fails to –
( a ) constitute an Internal Committee under sub-section ( 1 ) of Section 4 ;
( b ) take action under Sections 13 , 14 and 22 ; and
( c ) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder ,
he shall be punishable with fine which may extend to fifty thousand rupees .
2. If any employer , after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence , he shall be liable to –
( i ) twice the punishment , which might have been imposed on a first conviction , subject to the punishment being maximum provided for the same offence :
Provided that in case a higher punishment is prescribed under any other law for the time being in force , for the offence for which the accused is being prosecuted , the Court shall take due cognizance of the same while awarding the punishment ;
( ii ) cancellation , of his licence or withdrawal , or non-renewal , or approval , or cancellation of the registration , as the case may be , by the Government or local authority required for carrying on his business or activity .
Further , Section 27 provides that –
1. No Court shall take cognizance of any offence punishable under this Act or any rules made thereunder , save on a complaint made by the aggrieved woman or any person authorized by the Internal Committee or Local Committee in this behalf .
2. No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act .
3. Every offence under this Act shall be non-cognizable .
Here I very strongly feel that every offence against women must be made mandatorily cognizable and not non-cognizable as most unfortunately we see right now . There can be no justification for any crime against women and strictest action must be taken against the offenders without giving them an opportunity to escape . Those who take women’s dignity , honour and well being for granted must be made to pay the price and not get away easily without going to jail even once . Only then will some fear be instilled in those men who tend to prey on women as being “vulnerable targets” .
Section 5 stipulates that , “The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act .” Section 6 talks about constitution and jurisdiction of Local Complaints Committee . It lays down that –
1. Every District Officer shall constitute in the district concerned , a committee to be known as the “Local Complaints Committee” to receive complaints of sexual harassment from establishments where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself .
2. The District Officer shall designate one nodal officer in every block , taluka and tehsil in rural or tribal area and ward or municipality in the urban area , to receive complaints and forward the same to the concerned Local Complaints Committee within a period of seven days .
3. The jurisdiction of the Local Complaints Committee shall extend to the areas of the district where it is constituted .
Further Section 7 dwells upon the composition , tenure and other terms and conditions of Local Complaints Committee . It states that –
1. The Local Complaints Committee shall consist of the following members to be nominated by the District Officer , namely : –
( a ) a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women ;
( b ) one Member to be nominated from amongst the women working in block , taluka or tehsil or ward or municipality in the district ;
( c ) two Members , of whom at least one shall be a woman , to be nominated from amongst such non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment , which may be prescribed :
Provided that at least one of the nominees should preferably , have a background in law or legal knowledge :
Provided further that at least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government , from time to time ;
( d ) the concerned officer dealing with the social welfare or women and child development in the district , shall be a member ex officio .
2. The Chairperson and every Member of the Local Committee shall hold office for such period , not exceeding three years , from the date of their appointment as may be specified by the District Officer .
3. Where the Chairperson or any Member of the Local Complaints Committee –
(a ) contravenes the provision of Section 16 ; or
( b ) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him ; or
( c ) has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him ; or
( d ) has so abused his position as to render his continuance in office prejudicial to the public interest ,
Such Chairperson or Member , as the case may be , shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section .
4. The Chairperson and Members of the Local Committee other than the Members nominated under clauses ( b ) and ( d ) of sub-section ( 1 ) shall be entitled to such fees or allowances for holding the proceedings of the Local Committee as may be prescribed .
Section 9 stipulates the provisions concerned with the making of complaint of sexual harassment and runs as follows : –
1. Any aggrieved woman may make , in writing , a complaint of sexual harassment at workplace to the Internal Committee if so constituted , or the Local Committee , in case it is not so constituted , within a period of three months from the date of incident and in case of a series of incidents , within a period of three months from the date of last incident :
Provided that where such complaint cannot be made in writing , the Presiding Officer , or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee , as the case may be , shall render all reasonable assistance to the woman for making the complaint in writing :
Provided further that the Internal Committee or , as the case may be , the Local Committee may , for the reasons to be recorded in writing , extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period .
2. Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise , her legal heir or such other person as may be prescribed may make a complaint under this section .
Section 11 deals with the provision of inquiry into complaint . It states that –
1. Subject to the provisions of Section 10 , the Internal Committee or the Local Committee , as the case may be , shall , where the respondent is an employee , proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist , in such manner as may be prescribed or in case of a domestic worker , the Local Committee shall , if prima facie case exist , forward the complaint to the police , within a period of seven days for registering the case under Section 509 of the Indian Penal Code ( 45 of 1860 ) , and any other relevant provisions of the said Code where applicable :
Provided that where the aggrieved woman informs the Internal Committee or the Local Committee , as the case may be , that any term or condition of the settlement arrived at under sub-section ( 2 ) of Section 10 has not been complied with by the respondent , the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or , as the case may be , forward the complaint to the police :
Provided further that where both the parties are employees , the parties shall , during the course of inquiry , be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee .
2. Notwithstanding anything contained in Section 509 of the Indian Penal Code ( 45 of 1860 ) , the Court may , when the respondent is convicted of the offence , order payment of such sums as it may consider appropriate , to the aggrieved woman by the respondent , having regard to the provisions of Section 15 .
3. For the purpose of making an inquiry under sub-section ( 1 ) , the Internal Committee or the Local Committee , as the case may be , shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure , 1908 ( 5 of 1908 ) , when trying a suit in respect of the following matters , namely : –
( a ) summoning and enforcing the attendance of any person and examining him on oath ;
( b ) requiring the discovery and production of documents ; and
( c ) any other matter which may be prescribed .
4. The inquiry under sub-section ( 1 ) shall be completed within a period of ninety days .
Section 12 pertains with the action during pendency of inquiry . It says that –
1. During the pendency of an inquiry , on a written request made by the aggrieved woman , the Internal Committee or the Local Committee , as the case may be , may recommend to the employer to –
( a ) transfer the aggrieved woman or the respondent to any other workplace ; or
( b ) grant leave to the aggrieved woman up to a period of three months ; or
( c ) grant such other relief to the aggrieved woman up to a period of three months ; or
( d ) grant such other relief to the aggrieved woman as may be prescribed .
2. The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled .
3. On the recommendation of the Internal Committee or the Local Committee , as the case may be , under sub-section ( 1 ) , the employer shall implement the recommendations made under sub-section ( 1 ) and send the report of such implementation to the Internal Committee or the Local Committee , as the case may be .
Now the provisions pertaining to inquiry report are contained in Section 13 . It states that –
1. On the completion of an inquiry under this Act , the Internal Committee or the Local Committee , as the case may be , shall provide a report of its findings to the employer , or as the case may be , shall provide a report of its findings to the employer , or as the case may be , the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties .
2. Where the Internal Committee or the Local Committee , as the case may be , arrives at the conclusion that the allegation against the respondent has not been proved , it shall recommend to the employer and the District Officer that no action is required to be taken in the matter .
3. Where the Internal Committee or the Local Committee , as the case may be , arrives at the conclusion that the allegation against the respondent has not been proved , it shall recommend to the employer or the District Officer , as the case may be –
( i ) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made , in such manner as may be prescribed ;
( ii ) to deduct , notwithstanding anything in the service rules applicable to the respondent , from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs , as it may determine , in accordance with the provisions of Section 15 :
Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman :
Provided further that in case the respondent fails to pay the sum referred to in clause ( ii ) , the Internal Committee or , as the case may be , the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer .
4. The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him .
This Act of 2013 imposes certain obligations on all the employers which it shall be their duty to comply completely , uniformly and unconditionally . Section 19 which deals with the duties of employer states that , “Every employer shall –
( a ) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace ;
( b ) display at any conspicuous place in the workplace , the penal consequences of sexual harassments ; and the order constituting the Internal Committee under sub-section ( 1 ) of Section 4 ;
( c ) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed ;
( d ) provide necessary facilities to the Internal Committee or the Local Committee , as the case may be , for dealing with the complaint and conducting an inquiry ;
( e ) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee , as the case may be ;
( f ) make available such information to the Internal Committee or the Local Committee , as the case may be , as it may require having regard to the complaint made under sub-section ( 1 ) of section 9 ;
( g ) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code ( 45 of 1860 ) or any other law for the time being in force ;
( h ) cause to initiate action , under the Indian Penal Code ( 45 of 1860 ) or any other law for the time being in force , against the perpetrator , or if the aggrieved woman so desires , where the perpetrator is not an employee , in the workplace at which the incident of sexual harassment took place ;
( i ) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct ;
( j ) monitor the timely submission of reports by the Internal Committee .
Section 22 obligates employer to include information in annual report . It says that , “The employer shall include in its report the number of cases filed , if any , and their disposal under this Act in the annual report of his organization or where no such report is required to be prepared , intimate such number of cases , if any , to the District Officer .
Section 23 obligates the appropriate government to monitor the implementation of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace . Further , Section 24 imposes an obligation on the appropriate Government to take measures to publicise the Act . It states that , “The appropriate Government may , subject to the availability of financial and other resources , –
( a ) develop relevant information , education , communication and training materials , and organize awareness programmes , to advance the understanding of the public of the provisions of this Act providing for protection against sexual harassment of woman at workplace ;
( b ) formulate orientation and training programmes for the members of the Local Complaints Committee .” Also , under Section 25 , the appropriate Government has power to call for information and inspection of records . It declares that –
1. The appropriate Government , on being satisfied that it is necessary in the public interest or in the interest of women employees at a workplace to do so , by order in writing , –
( a ) call upon any employer or District Officer to furnish in writing such information relating to sexual harassment as it may require ;
( b ) authorize any officer to make inspection of the records and workplace in relation to sexual harassment , who shall submit a report of such inspection to it within such period as may be specified in the order .
2. Every employer and District Officer shall produce on demand before the officer making the inspection all information , records and other documents in his custody having a bearing on the subject-matter of such inspection .
Can conciliation be made between the aggrieved women and the respondent ? Section 10 of the Act of 2013 provides the remedy . It states that –
1. The Internal Committee or , as the case may be , the Local Committee , may before initiating an inquiry under Section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation :
Provided that no monetary settlement shall be made as a basis of conciliation .
2. Where a settlement has been arrived at under sub-section ( 1 ) , the Internal Committee or the Local Committee , as the case may be , shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation .
3. The Internal Committee or the Local Committee , as the case may be , shall provide the copies of the settlement as recorded under sub-section ( 2 ) to the aggrieved woman and the respondent .
4. Where a settlement is arrived at under sub-section ( 1 ) , no further inquiry shall be conducted by the Internal Committee or the Local Committee , as the case may be .
For my readers benefit , I must disclose here that the law to check sexual harassment of women at workplace has now come into force after a long time . Union Minister for Women and Child Development Krishna Tirath told Parliament that the Sexual Harassment of Women at Workplace ( Prevention , Prohibition and Redressal ) Act , 2013 came into force from December 9 while also informing that complaints of sexual harassment at workplace have increased over the years . Let me also disclose here that while taking the bull by the horns , the Chennai High Court has formed internal committees for itself as well as all subordinate courts in Tamil Nadu and Puducherry , empowering them to deal with all forms of sexual harassment complaints and award appropriate punishment .
A senior officer of Chennai High Court said that , “To our knowledge , our High Court is the first in the country to form the gender sensitization and internal complaints committee ( GSICC ) and notify it .” A gazette notification dated November 27 announced that the Chief Justice would constitute committees which would have a minimum of seven members and a maximum of 13 members . There will be separate committees for the principal seat of the High Court in Chennai and the bench in Madurai . “The regulations are being published as a comprehensive code for the prevention of sexual harassment of women within the precincts of the Chennai High court and for redressal of any possible complaints ,” said the notification , adding that it was being issued following an order of the Supreme Court in the Binu Tamta case on July 17 . By a separate notification , the High Court said such committees would be formed in subordinate courts in Tamil Nadu and Puducherry to address sexual harassment complaints in those courts . They will be headed by the district judge and will have senior members from bar associations . Let me also point out here that though the Chennai High Court notification came on November 27 , just a day after the Supreme Court order that announced the formation of a similar committee headed by Justice Ranjan Prakash Desai , it did not name members of the proposed committees .
It is a matter of grave concern that legal redressal for victims of sexual violence is fraught with lots and lots of difficulties as there is most unfortunately an inherent apathy in the system towards such victims and she has to run from pillar to post facing all types of uncomfortable questions and most of the times unfounded accusations on her character are hurled leaving her further traumatized . The worst part is when even police takes the side of the offender who are mostly influential and powerful and she is pressurized to drop the charges against him . “The victim – often a minor – is usually made to wait for hours before the FIR is lodged , shunted from one police to another , or dissuaded from filing a report . During this period , they are pried upon , sometimes even exposed to the accused who intimidates them . None of this is in keeping with the newly introduced Protection of Children from Sexual Offences Act ( PCSOA ) 2012 guidelines or the Criminal Law ( Amendment ) Act 2013,” points out women’s rights activist and lawyer Flavia Agnes .
Delhi-based lawyer and human rights activist Vrinda Grover says improvement in reporting of sexual crimes is solely because of women , and has nothing to do with better functioning of systems . She laments that , “More women are coming forward to report sexual crimes . But that is largely because women themselves are seeking accountability and redressal from the legal justice system , and not because the system has improved . The police still do not have any protocol that is displayed in police stations for handling sexual violence , in many cases it is still extremely difficult for women to register complaints .” A woman activist Kavita Krishnan says that , “In cases of extreme violence , police action is usually prompt . But in the far more common cases of continued sexual harassment , even senior ranking police officials question complainants . There is always a suspicion over the complicity of the woman .” This is the real nub of the problem due to which crimes against women are showing no signs of ebbing inspite of Government creating so many new laws .
It needs to be brought out here that even our judicial system is not foolproof and there are loopholes within it too . In particular , I would mention here the clause that says the victim’s identity should be protected and trials for rape cases should happen in-camera , is executed , but more often than not , the courtroom is emptied out only after the victim has been brought in . Let me tell you : The trial alone can be quite stressful and demoralizing as was proved in the Shakti Mills case where the victim fainted immediately upon being shown the pornographic video clips in court . Therefore , it is imperative that the trial must be conducted under such circumstances in which the women does not feel too much strained .
Let me not shy away from disclosing here that the late Justice JS Verma , the former CJI who had authored the landmark 1997 Vishaka case judgment had second thoughts on the very purpose of Internal Complaints Committee ( ICC ) and had proposed external committee instead when appointed as head of Committee to suggest changes in law relating to sexual crimes after the Nirbhaya episode in December 2012 . The Verma Committee had very categorically held that , “It is our apprehension that the in-house dealing of all grievances would dissuade women from filing complaints and may promote a culture of suppression… to avoid the concerned establishment falling into disrepute .” It said that the provision entrusting the probe to ICC was “counterproductive to the ends sought to be met” . The major reason why the Verma committee departed from what had been enunciated famously in the Vishaka judgment of 1997 about the ICC was the feeling that it might not work in such cases where the complaint was against an influential person within the organization . The alternative proposed by the Verma Committee was an external “employment tribunal” comprising two retired judges , two sociologists and a social activist . It was felt by the Committee that such a tribunal would obviate the need for ICC or even the local complaints committee contemplated for the informal sector by the Bill which has now become an Act . But I regret to say that the Government overlooked such key recommendations !
The Verma Committee had also suggested that the complaint should not be allowed to be withdrawn “so as to ensure that all cases of sexual harassment are properly dealt with under the law of the land” . It also minced no words to point out that the option of conciliation would end up putting the aggrieved woman under pressure to give up the legal remedies . This too has been ignored ! Justice Verma recognized the ambiguity of the examples cited in the definition – “sexually coloured remarks” , “physical contact and advances” and “showing pornography” . This alone explains why the Verma Committee had proposed a caveat to the definition stressing the need to empathise with the vulnerability of the victim which is : “In determining whether the behavior or act complained of is unwelcome , one of the factors to be given due weight shall be the subjective perception of the complainant .” But , I again regret to say that the Government did not make any move to insert the proposed clarification that was aimed at making the law more sensitive to women who is most vulnerable in workplaces by her superior male employers !
All said and done , I am quite confident that no matter the drawbacks this Act of 2013 may be enmeshed with yet if it is implemented sincerely , uniformly and completely , it can go to a great extent in putting a brake on the burgeoning crimes against women pertaining to sexual harassment especially at workplaces ! No law can be perfect or complete but I do feel that if the Government’s attention is drawn to some loophole it should immediately step in and take the necessary measures to plug it immediately without forwarding any “ifs” and “buts” ! Woman’s dignity and safety is paramount and those men who dare to ever take woman for granted must be made to face the strictest punishment as per law, no matter how powerful he may be or holding top post in any organization!