Law on Prevention of Sexual Harassment at Workplace in India

A. INTRODUCTION

With the immense increase in employment of women at workplaces in India, the sexual harassment against women in India has reached greater heights and dimensions. Sexual harassment against women is a violation of the provisions of the constitution of India. Such harassment against women at workplaces creates uncomfortable and hostile working conditions impeding the ability of women to perform efficiently at the workplace and this causes not only physical suffering but also emotional distress.

B. BRIEF HISTORY

Harassment of women at workplace in India, gained light for the very first time in Vishaka vs. State of Rajasthan[1] (“Vishaka Judgment”), wherein the Supreme Court of India formulated guidelines and issued such directions to the Union that proper and appropriate guidelines shall be enacted for the purpose of overcoming harassment of women at workplace. The guidelines laid down by the Supreme Court in the Vishaka Judgment had made it compulsory for every employer to formulate a mechanism to redress such grievances in relation to harassment at the workplace. While framing such guidelines in relation to sexual harassment, under the Vishaka guidelines, reliance was placed by the Supreme Court on the Convention on Elimination of All Forms of Discrimination against Women, which was adopted by the General Assembly of the United Nations in 1979, which India has signed and has also ratified.

Pursuant to the Vishaka Judgment, “Sexual Harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

1. Physical contact and advances
2. A demand or request for sexual favours
3. Sexually coloured remarks
4. Showing pornography
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work (whether she is drawing a salary or honorarium or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace. 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 and promotion), or when it creates a hostile working environment. Adverse consequences might result if the victim does not consent to the conduct in question or raises any objection thereto.”

Post the Vishaka Judgment, in Apparel Export Promotion Council vs. A.K. Chopra[2], the definition of sexual harassment was elaborated and the Supreme Court held that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.”

C. SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 (“SH Act”):

1. Background:

The draft Protection of Women against Sexual Harassment at Workplace Bill, 2007 (“Sexual Harassment Bill”), was approved by the Union Cabinet in the year 2007. In 2010, the Sexual Harassment Bill was introduced in the Lok Sabha. The Sexual Harassment Bill was further amended and once again placed before the Lok Sabha in the year 2012 and the Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Bill, 2012 (“Amended Bill”) was passed by the Lok Sabha as on September 03, 2012. The Amended Bill was further passed by the Rajya Sabha as on February 26, 2013. The SH Act received presidential assent and was published in the Official Gazette as on April 23, 2013. December 09, 2013, was notified as to the effective date for the SH Act and its rules by the Indian Ministry of Women and Child Development.

2. Important Provisions of the SH Act:

An ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment.[3] Pursuant to the definition, it is not necessary for a woman to be an employee at the workplace, rather a woman who is a client or a customer, who would be sexually harassed at a particular workplace, shall be entitled to claim protection under the SH Act. The aggrieved woman could either be working, visiting the workplace or a student and the woman working at the workplace could be a regular wager, a domestic help, for remuneration, either employed directly or through an agent or a probationer, trainee, apprentice or a contractor. It is pertinent to note here that for a woman to seek protection under the SH Act, the sexual harassment incident should have taken place at a workplace. The SH Act provides protection only to women and not men who would be subjected to sexual harassment.

The SH Act is applicable to all the sectors including organized and unorganized sectors.

Pursuant to the provisions of the SH Act, “sexual harassment means and includes unwelcome sexually tinted behaviour, whether directly or by implication, such as (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature”[4]. Certain situations such as preferential treatment, humiliating in a manner causing health issues, the threat of treatment in employment which would be detrimental to the woman, future employment status threat, creation of a hostile environment or intimidating or offensive behaviour and all of the above being implied or explicit, would also fall within the purview of sexual harassment[5].

Certain forms of sexual harassment can be clearly distinguishable and would amount to sexual harassment, however, certain situations cannot be clearly distinguished to fall within the scope of sexual harassment and the onus to prove and determine the same shall lie on the internal complaints committee.

An employee pursuant to the terms of the SH Act shall mean “a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and include a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name[6] and the scope of the definition is wide.”

As opposed to Vishaka guidelines, the SH Act defines workplace as an extended workplace by covering any place visited by an employee during the course of his/her employment which would include transportation provided by an employer for the purpose of travelling to and from the place of work by the employee.[7]

3. Internal Complaints Committee (“ICC”):

One of the most important characteristics of the SH Act is to provide for a grievance redressal forum. Every employer employing more than 10 employees shall be required to set up an internal complaints committee at each office or branch for the purpose of hearing and redressal of grievances which would relate to sexual harassment. In the event of failure to constitute this committee, a fine would be imposed pursuant to the provisions of SH Act.

The ICC shall consist of the following:

1. A presiding officer who shall be a senior level woman employee employed at the workplace.
2. There shall be 2 members who shall be preferably committed to such a cause and who have prior experience in relation to social work or have such legal knowledge.
3. One external member from an NGO or an association which would be committed to the cause of women.

It is pertinent to note here that not less than half of the members of the ICC shall be women and the term of the ICC shall be 3 years. In the event of any inquiry, 3 members of the ICC including the presiding officer shall be present for the purpose of conducting the inquiry.

In the states of Telangana and Maharashtra vide circulars issued as on September 01, 2019, and March 23, 2019, respectively, the circulars mandated the registration of the ICC. The ICC shall be registered with the Telangana Sexual Harassment Electronic Box, whereas in Maharashtra, the ICC shall be registered with the office of District Women and Child Development Officer.

4. Local Committee:

The governments at district levels are required to constitute a local committee to redress and investigate sexual harassment complaints from unorganized sectors or from such establishments wherein an ICC has not been constituted as the employees employed in such establishment are below 10[8].

5. Powers entrusted with the ICC and the Local Committee:

The powers vested with the ICC and the Local Committee for the purpose of investigation and inquiry into the complaints at a workplace in relation to sexual harassment shall be same as that of the powers vested in civil courts pursuant to the provisions of the Code of Civil Procedure, 1908, in the event of trying a particular suit.[9]

6. Mechanism for Complaints:

When a complaint is to be filed by an aggrieved woman, 6 copies of the written complaint accompanied by supporting documents and details of the witnesses shall be filed within 3 months from the date of such incident with the ICC or the Local Committee. Such a timeline shall be extendable for a period of 3 months. The prompt reporting of such events and filing of complaints plays a vital role for the purpose of the authenticity of the complaint and the quick redressal in relation to the same. In the event of any delay in filing of a complaint with sufficient cause, the reasons for such delay shall be recorded in writing. However, it may be noted that the SH Act and the relevant rules, do not prescribe any specific format for the purpose of lodging of a complaint.

7. Modes of Complaint Redressal:

The ICC may upon the request of an aggrieved woman, prior to the initiation of an inquiry in relation to the complaint, put in such efforts for the purpose of amicable settlement by way of conciliation[10]. Upon arriving at a settlement, the same shall be recorded by the ICC or the Local Committee and the copies of the settlement shall be provided to the aggrieved woman and the respondent. However, if the settlement has not been arrived at, the ICC or Local Committee shall continue to investigate and inquire into the complaint pursuant to the provisions of the SH Act.

8. Procedure:

1. Within 7 days from the date of receipt of the complaint, a copy of the complaint shall be sent to the respondent.
2. The respondent shall reply to the complaint within 10 days from the date of receipt of the complaint along with such supporting documents and details of witnesses if any.
3. Within 90 days from the date of receipt of the complaint by the ICC or Local Committee, the inquiry shall be completed.
4. Within 10 days from the date of completion of the inquiry, an inquiry report shall be issued to the employer.
5. Within 60 days of receipt of the inquiry report, the employer shall act on the recommendations made by the ICC or Local Committee.
6. An appeal can be made against the decision of the committee within 90 days from the date of such recommendations to the court.

9. Punishment and Reliefs:

Interim reliefs can be provided to the aggrieved woman at the request made to the ICC or Local Committee such as transfer of the aggrieved woman and 3 months leave in addition to her statutory leaves.

The employer shall be required to compensate the aggrieved woman based on i. the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee; ii. the loss in career opportunity due to the incident of sexual harassment; iii. medical expenses incurred by the victim for physical/ psychiatric treatment; iv. the income and status of the alleged perpetrator; and v. feasibility of such payment in a lump sum or in instalments [11].

10. Non-compliance of the SH Act:

A penalty of Rs. 50,000/- shall be levied on an employer who fails to comply with provisions of the SH Act. The offences under the SH Act are non-cognizable in nature.[12]

Where the breach of the provisions of the SH Act has been repeated by the employer, the employer shall be subject to twice the punishment or a higher punishment under any other such law as may be prescribed for the same offence and the cancellation/withdrawal/non-renewal of registration/license required for carrying on business or activities.

D. VARIOUS OTHER LAWS WHICH PROVIDE FOR SEXUAL HARASSMENT AT WORKPLACE

1. Industrial Employment (Standing Orders) Act, 1946 (“IESO Act”):

The IESO Act provides for the preparation and formulation of Model Standing Orders, which would serve as guidelines for the employers and the IESO Act states that the Model Standing Orders shall be certified. The Industrial Employment (Standing Orders) Rules, 1996 enlists such acts which amount to misconduct and this list specifically mentions “sexual harassment”. The definition of sexual harassment is not only limited to the definition as mentioned in the Vishaka Judgment, rather it sets forth the requirement of constitution of a complaints committee for the purpose redressal of such grievances. These standing order rules, do not limit to sexual harassment of women, but they also include sexual harassment against men.

2. The Indian Penal Code, 1860 (“IPC”):

There are various sections under the IPC which could fall within the scope of sexual harassment. Sections including Section 509 (Insulting the modesty of a woman); Section 354 (outraging the modesty of a woman); Section 354-A (sexual harassment by a man); Section 354-B (Assault or use of criminal force to women with intent to disrobe); Section 354-C (voyeurism); Section 354-D (Stalking) are such sections which could be triggered in relation of sexual harassment of women at workplace.

D. CONCLUSION

The effective implementation of the law governing the sexual harassment at workplace plays a vital role in enhancing work performance and having a proper redressal mechanism in place would lead to providing a safer workspace and would lead to avoidance of creation of a hostile work environment. However, awareness in relation to the result and the consequences in relation to sexual harassment at a workplace has always been limited and restricted. The implementation of the SH Act shall be extremely effective with the sole purpose of ensuring the women have a platform for speaking up in relation to their grievances without any apprehension and the same would provide for refinement, respect and sensitivity of men towards the treatment of women at the workplace.

Author: Kriti Sanghi, Associate

Disclaimer: The content of this article is intended to provide a general guide to the subject matter. For any queries, the author can be reached at kritisanghi@samistilegal.in.

[1] 13^th August, 1997 (1997 6 SCC 241: AIR 1997 SC 3011

[2] 20^th January, 1999 (1999) I SCC759

[3] Section 2 (a) of SH Act

[4] Section 2 (n) of SH Act

[5] Section 3 (2) of SH Act

[6] Section 2 (f) of the SH Act

[7] Section 2 (o) of the SH Act

[8] Section 5 of the SH Act

[9] Section 11 (3) of the SH Act

[10] Section 10 of the SH Act

[11] Section 15 of SH Act

[12] Section 26 of the SH Act and Section 27 of SH Act