By Shinjini Kharbanda,
Associate, Phoenix Legal, New Delhi
The recent sexual harassment case of Tarun Tejpal (editor of investigative journalism magazine, Tehelka) has brought to the fore the inept redressal of sexual harassment complaints within the Indian companies. The Supreme Court of India in 1997, for the first time, acknowledged sexual harassment at the workplace as a human rights violation in Vishaka and others v. State of Rajasthan[i] (the Vishaka judgment). This judgment made it mandatory for employers at all workplaces to observe the guidelines laid down therein.
However, the law dealing with this pertinent issue has been enacted almost 16 years after the judgment on the Vishaka case was passed. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; (hereinafter the Act) aims at providing "protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment."[ii] It was notified by the Central Government on December 9, 2013 and it replaces the guidelines provided in the Vishaka judgment.
In addition, the Parliament has strengthened the penal law whereby it has included punishment for sexual harassment in the Indian Penal Code, 1860).[iii] The duty of employer includes that he must provide assistance to a woman employee if she opts to file a police complaint or he can by himself initiate action against the perpetrator under the Indian Penal Code, 1860.[iv] Further, the Supreme Court has also taken a proactive approach by introducing the Gender Sensitization and Sexual Harassment of Women at Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013.
I Sexual Harassment and Workplace – Definition
The definition of ‘sexual harassment’ stipulated in the Act includes any unwelcome sexually determined behaviour such as physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical verbal or non-verbal conduct of sexual nature. This wide definition takes into account direct or implied acts of such nature.[v]
The Act stipulates that a woman should not be subjected to sexual harassment at any workplace. As per the statute, the presence or occurrence of circumstances that imply the promise of preferential treatment in employment; the threat of unfavourable treatment in employment; the threat about present or future employment; interference with work or creating an intimidating or offensive or hostile work environment; or humiliating treatment which is likely to have an adverse effect on any lady employee's health or safety falls within the purview of sexual harassment.[vi]
The Act has provided a wide connotation to the term 'workplace'. It takes into account the actual place of work and the areas connected to it including the transport that the employee uses for commuting to her workplace. Also, the Act is applicable to both the organised as well as the unorganised sector in India.
II Constitution and Working of Internal Complaints Committee
The Act mandates the establishment of Internal Complaints Committee at all branches or offices of organizations where at least ten or more employees are employed.
The constitution of the Committee is as follows:
1. It should be headed by a women employed at a senior level.
2. Half of the members should be women.
3. It should include a third party NGO/other body.
4. Two persons amongst employees committed to the cause of women/experience in social work/legal knowledge should form part of the Committee.
The maximum period for which any member can occupy a position in the Committee is three years.
Interim Reliefs – During pendency of enquiry, the complainant may be transferred or granted leave if so requested. Further, the accused person can be restrained from reporting on the work performance of the complainant.
A report pertaining to the findings of the said committee should be given to the employer within ten days. If the act of sexual harassment is proved then action must be taken against the offender under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 or the compensation to the complainant is to be deducted from the salary of offender. The Act clearly mandates that the employer has 60 days to act upon the recommendations of the Internal Complaints Committee.
The following courses of action can be taken against the offender:
a) Written apology;
d) Withholding increments/promotion;
e) Termination from service;
f) Undergoing counseling session; and
g) Carrying out community service.
If the complainant wishes, the Committee can settle the matter through conciliation (but not as a monetary settlement). When the matter is settled in this manner, terms of settlement have to be then communicated to the Employer who shall then take action. If conciliation is not preferred by the aggrieved female employee then an inquiry has to be conducted by the said Committee.
Also, the Committee must prepare an annual report to be submitted to the Employer and the District officer of the district where the organization is situated.
III Obligation of Employers
The employer's obligations under the Act are as follows:
a) Providing a safe working environment at the workplace;
b) Displaying at the workplace, details of – the penal consequences of indulging in acts of sexual harassment, composition of the Internal Complaints Committee and the availability of the grievance redressal mechanism for aggrieved employees;
c) Providing necessary facilities to Internal Complaints Committee for presiding over enquiry and dealing with complaints;
d) Taking disciplinary action when an allegation of sexual harassment has been proved;
e) Encouraging employees to raise any issue of sexual harassment;
f) When an outside party is alleged to have subjected employee to sexual harassment, helping the employee to initiate action against such person; and
g) Carrying out employee awareness programs.
The Act has imposed a penalty of fifty thousand rupees for:
(a) Non-establishment of internal committee by the organization.
(b) Not submitting the annual report by the Internal Committee.
(c) Not submitting the inquiry report by the Internal Committee.
(d) Not taking action against false complaint/evidence.
The Act also provides that if an employer is convicted again for same offence then he may be punished with twice the punishment as prescribed under the Act. Moreover his licence may be cancelled or the registration required by him for performing his business or activity may be withdrawn or not renewed.
It is about time that society shows a 'zero tolerance' attitude towards this shameful act. These humiliating acts tend to discourage women from taking up vocations of their choice or force them to be silent sufferers at the workplace.
This beneficial piece of legislation cannot be considered to be an all- encompassing one as it has to plug a few loopholes. As matters of sexual harassment demand sensitivity and responsible action from the managing authority, conciliation as mode of settlement of said issue may not be a favourable measure. Such an act of harassment causes a psychological impact on the aggrieved woman and she may not be in a stable frame of mind to settle this issue through conciliation. Also, this legislation poses a daunting task for the employer to establish Internal Complaints Committee at every office of the organisation. Further, the time bound redressal of such matter by the employer may face roadblocks as these issues need thorough investigation and assessment of the complaints.
Nevertheless, it is a significant and positive step that a law governing sexual harassment at the workplace has been codified, as it has established a formal system for tackling this grave issue.
[i] AIR 1997 SC 3011
[ii] Preamble to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
[iii]Section 354A-‘Sexual harassment and punishment for sexual harassment’ has been added by the Criminal Law (Amendment) Act, 2013. The punishment for sexual harassment varies between 1-3years depending on the nature of the crime. The Criminal Law (Amendment) Act, 2013 has provided that crimes of this nature will now be considered as bailable offence
[iv] Section 19(g) and Section 19(h), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
[v] Section 2(n), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
[vi] Section 3, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013