Abstract
Much has been said, written and proselytised about the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the now renowned Vishaka vs. The State of Rajastan1 judgment of the Supreme Court. While the de-criminalisation of Section 377 of the Indian Penal Code may be in the news, it is important to examine welfare laws such as this which paved the way for our current legal amelioration.
This article seeks to examine this crucial legislation from a positive, objective perspective. However it is also important to note that law needs to be understood as a discursive process, both emancipatory and oppressive.
Introduction
Our country has affirmed its commitment to women’s rights at local, national and international platforms on several occasions. Towards this goal, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 received the assent of the President of India on April 22, 2013. It came into force on December 9, 2013.
However it is no secret that India is a complex and diverse democracy; and that despite its insistent advancement towards globalisation, many of its populace suffer from the historical and the pervasive malignance of the caste system, religion, the colonial legacy of ‘class’, skin tone and especially the subordination of women.
At present, life in our country is still a study of paradoxes. The juxtaposition of urban and rural areas is scripted by paradoxes relating to economic as well as societal position and gender. It is pertinent to discuss this as these paradoxes often impede the enforcement of this law.
It is also relevant to know that the current application and enforcement of the Act is preceded by cases of harassment prosecuted under the provisions of the Indian Penal Code punishing crimes committed ‘with the intent to outrage the modesty of a woman’ and the landmark judgement on the issue – “Vishaka and others vs. the State of Rajasthan”. Vishaka was the first judgement to define SHW in India, after which “Medha Kotwal Lele & Ors. v Union of India & Ors.”2 analysed the implementation of the Supreme Court Directives set out in Vishaka. The Bill for the current Act was enacted a month before the Apex Court’s decision in this case. In a similar vein, it was the Justice Verma Committee Report following the unspeakable crimes against Nirbhaya that served as the final catalyst for the passing of this legislation on sexual harassment of women at work in India.
The Act
The Act, a significant legislation for a plethora of reasons, also requires amendments to strengthen its vigour and application.
Summary of the Salient Provisions
l At the heart of the Act is the intent to afford protection to all women in India from sexual harassment at workplace (SHW) and to encourage their participation in work and their social and economic empowerment.
l The Act extends to the whole of India and seeks to address the sexual harassment of women alone. It is pertinent to note however that the aggrieved woman as envisaged under the Act is not required to be an employee at the workplace where she may be subjugated to harassment. Apart from the lack of gender neutrality with respect to the complainant, the application of the Act is intentionally wide and this can be inferred foremost from the definitions of ‘employee’, ‘employer’ and ‘workplace’. The Act applies to the organised sector as well as the unorganised sector. In view of the wide definition of ‘workplace’, the statute, also applies to government bodies, private and public sector organisations, factories, non-governmental organisations, organisations carrying on commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals, among others. In accordance with the provisions of the Act, a workplace also covers within its scope, places visited by employees during the course of employment or for reasons arising out of employment – including transportation provided by the employer for the purpose of commuting to and from the place of employment. Additionally prominent cases of sexual harassment (both admitted in court and otherwise) reveal the broad spectrum of workplaces that have been construed by various redressal forums across the country.
The Act focuses on prevention, prohibition and redressal of sexual harassment of women at the workplace in India; and the rights and duties are invested in
(a) the employer (section 2{g}),
(b) The employee (section 2{f}),
(c) the aggrieved woman (section 2{a}),
(d) the Internal Complaints Committee (ICC)/ Internal Committee (IC) or the Local Complaints Committee (LCC)/Local Committee (LC) as the case may be,
(e) the appropriate Government (section 2{b}),
(f) the District Officer (section 5),
(g) the designated nodal officer (as under section 6{2} of the Act ), and
(h) the Appellate Authority (in accordance with section 18 of the Act).
Rights and Duties of the Employer
PROHIBITION: The Act expressly invests in every employer the duty to provide women employees with a safe working environment and a workplace devoid of sexual harassment. Additionally, Section 19 of the Act mandates that the employer regard SHW as misconduct under the service rules (of such workplace) and take action for such misconduct.
Prevention : Section 3 of the Act
expressly prohibits SHW of women
The primary responsibility of every employer that employs more than 10 employees working at the specific workplace is to:
- Organise workshops, awareness programmes and capacity building programmes for both the employees and the internal complaints committee (ICC) members at regular intervals, disseminate the internal policy for prohibition, prevention and redressal of SHW including the contact details of the ICC members.
- Another important function imposed on employers is the duty to institute an Internal Complaints Committee in accordance with the provisions of the Act (Chapter II; Section 4 {1}) to hear and address the complaint and to make a recommendation in every matter. This includes the payment of fees for the Committee members (Rule 3). It bears note that there is no specific penalty imposed by the Act on employers who do not accept or act according to the ICC’s recommendations.
- Provide the necessary facilities to the committees to conduct the inquiries. This includes providing assistance to the respondent and necessary witnesses, making available such information as may be required for the inquiry etc.
- The employer must also assist the aggrieved woman if she so wishes to proceed with filing a complaint under the IPC or any other relevant law.
- Section 19 (j) read with sections 21 and 22 invest in every employer the duties to include certain information and statistics regarding the number of sexual harassment cases at the respective workplace in the annual report of company and in the annual report of the ICC every year.
- Penalty: Section 26 of the Act provides for a fine of upto Rs.50, 000/- on the employer in the event of non-compliance with the provisions of the Act relating to constitution of the ICC, inquiry and the annual report.
Rights and Duties of the Committee (ICC/LCC) Members
Prohibition and Prevention : Section 4 to Section 16 enumerates the duties of the Internal Complaints Committee and Local Complaints Committee members.
l The Presiding Officer or any Member of the Committee is invested with the duty to assist the aggrieved party when she wishes to make the complaint (Section 9).
l The Internal Complaints Committee (ICC) must be setup as per the guidelines prescribed in Section 4. As per the current law, there should be an ICC formed at every branch of the company in the country, where there are more than 10 employees. The District Officer is required to constitute a Local Complaints Committee (LCC) in each district, and if required at the block (Taluk) level (Sections 5, 6 and 7).
l The Act mandates for the LCC to be set up to address complaints in the event an establishment has less than 10 workers or if the complaint is against the employer himself. The appropriate Government notifies a District Officer to discharge the functions of this Act. The Act deems that the Chairperson of the LCC shall be a woman. A minimum of four persons are to constitute the LCC, and at least half of the members are to be women. The ICC/LCC should be equipped to investigate all complaints thoroughly (seeking the assistance of the employer when required) and recommend actions to be taken.
l The inquiry process should involve the respondent, witnesses and the examination of evidentiary documents etc., if any.
l The recommendations can include the transfer of the woman aggrieved or a grant of a leave of absence during the course of the inquiry.
l Statutory reporting of the cases filed and action taken should be reported and filed in the company’s annual report.
l The inquiry must be conducted within 90 days from the submission of the complaint.
Additionally, the Act also invests the protagonists with the task of monitoring and reporting with the specific objective of prevention. Of relevance are the following provisions.
l The employer shall monitor the timely submission of reports by the Internal Complaints Committee.
l Penalty for violation of confidentiality: If any person violates the provisions of Section 16 (confidentiality), the Employer is vested with the power to recover a sum of Rs. 5,000/- as penalty from such person.
l The ICC or the LCC, as the case may be, shall prepare an annual report and submit the same to the Employer and the District Officer.
l The District Officer is duty bound to forward a brief report on the annual reports received to the State Government and monitor the timely submission of reports furnished by the Local Complaints Committee.
l The Appropriate Government shall monitor the implementation of the Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment of women at the workplace.
Rights and Duties of the Employee
The definition of ‘employee’ in section 2(f) of the Act is wide and covers regular, temporary, ad hoc employees, ‘individuals engaged on daily wage basis, either directly or through an agent, contract labour, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied’.
The primary duties of the employee albeit not expressly mentioned anywhere in the Act would be to abstain from committing sexual harassment at the workplace, complain in a timely manner, cooperate with the Employer/ICC/LCC as the case may be and participate in gender sensitisation initiatives. There is also a general duty/right imposed by the Act on any person having knowledge of any incident of SHW to report it (Rule 6{b} read with section 9{2}).
Penalty: It bears note that the Act prescribes no specific penalty on those persons found to be perpetrators of SHW by the ICC/LC or through any other redressal mechanism preferred. The provisions of the Act as under section 13, section 15 read with Rule 9 enumerates that the ICC/LCC can impose penalties on those employees found guilty of SHW. The punishments that the ICC/LC can prescribe range from verbal censure or reprimand, warning letter, community service, counselling, withholding pay or promotion or termination. There is a penalty for violation of confidentiality of the proceedings or relating to any information of an incident of SHW as envisaged by the Act.
Redressal
Complaint Procedure: The Act prescribes that the aggrieved woman is required to make a written complaint of the same to the ICC or LCC within three months from the date of incident and when there are series of incidence then three months from the last incident. If the woman is unable to make a complaint in writing then proper assistance can be given by the Presiding Officer or any member of ICC or by the Chairperson or any member of the LCC. According to the Rules of the said Act if a woman is unable to make a complaint due to her physical incapacity then the complaint can be made by her friend or her co-worker or any Officer of the National Commission for Women, or the appropriate State Women’s Commission or any person having the knowledge of the incident, with the prior written permission of the aggrieved woman.
Redressal under the Indian Penal Code: Sexual harassment of women at the workplace is a criminal offence as per the amendments made to the Indian Penal Code in 2013 (refer to Criminal Law Amendment Act, 2013). Under section 354(A) of the IPC a person who is found guilty of the offence of sexual harassment may be punished with imprisonment for upto 3 years and/or a fine. Hence a victim can raise a criminal complaint as well as a case with the ICC; both can run simultaneously.
Conciliation:The Act (section 10) also allows female employees to request for conciliation in order to settle the matter. The terms of the conciliation are to be recorded in writing in order to avoid any ambiguity.
Critical Evaluation
An overview of the Act is necessary to understand the scope and extent of its application and the potential challenges to its enforcement. The very existence of this legislation is progressive and has had a positive impact in both the economic and social (welfare) facets of working in the organised sector in India, but there are gaps which need to be clarified in order to extend its benefits to the millions of women who are working in our agriculture, small-scale and cottage industries, among other unorganised sectors.
SHW is a recurring issue across workplaces in India today (both in the organised and unorganised sectors). Although the Vishaka Directives and the Act defines ‘sexual harassment’, a clear comprehension of SHW is limited. Perceptions and understanding of what constitutes SHW is vague and varies within the many cross-sections of Indian society and this affects the application of the Act. This is also one of the reasons why inconclusive complaints are filed i.e. complaints that cannot be deemed as false as per the Act, but complaints that prima facie do not amount to SHW.
The most common form of SHW in India is verbal harassment. This includes unwelcome verbal comments, comments with a sexual connotation or of a sexual nature, unwelcome flirtation and invitations (for sexual contact of all kinds), comments on the victims’ appearance or attire, singing of ‘Bollywood’ (or regional movie) songs and catcalls (whistling). Other common forms of harassment include physical touching and lewd text messages, phone calls or emails. The research also revealed that since the passage of the Act perpetrators are becoming smarter and make certain not to leave a forensic footprint i.e. perpetrators of SHW ensure that there are no witnesses, that the harassment is not in writing or via text message, email or phone call. This makes the SHW/harassment harder to prove.
Also pervasive in India is retaliation against complainants and witnesses: (a) Complainants are often deterred from complaining by the employer for various reasons. Failure to comply with the employer’s demands by the complainant could result in punishments that either target her/his social status (reputation – which is of great normative value) or job security. Retaliatory acts by the employer include intimidation (especially during the pendency of an inquiry), a reduction in the complainant’s wage or role in the organisation, bad work appraisals negating the complainant’s chances of a pay-hike and promotion, job transfers, retrenchment or termination. (b) Both complainants and witnesses often express fear of retaliation from the alleged perpetrator outside of the workplace. This remains a crucial challenge and one which the legislators have sought to address with the amendment of the IPC. Although employers may not be held legally accountable for an employee’s safety after work hours and outside of the premises, threats on the complainant’s life and to her/his safety is of great concern. At present, there is no provision in the Act to punish wrong-doers who exact revenge against complainants, so the victim’s only recourse is under the IPC.
While those affected by SHW belong to various industries across the country, it is women who predominantly face this abuse. Whilst men and those belonging to other genders (those who identify themselves as transgender and transperson) do face this abuse, the number of complaints received is far less. SHW is also seen as a power issue; where the aggrieved women are often subordinate to their male harassers. At present women constitute only 1% of senior management in India, 4% of middle management and 14-18% at the lower level. Another consequence of this is that women that face harassment are often between the ages of 15-40 years. Those women that are at the highest risk of SHW are women in lower-level jobs with little or no education.
The most positive trend reported was awareness of the Act and of the prohibition of SHW. As a direct corollary of this most of the participants reported a significant increase in the constitution of ICCs by organisations. Also, it was reported that men express fear of being charged with sexual harassment and that younger women are more vocal with respect to reporting SHW. As for younger men it was observed that they too seemed proactive and ready to engage with SHW law; and grasp the nuances of consensual and unwanted sexual acts better.
It was also reported that large multi-national corporations, with numerous branch offices, located across the country were the fore-runners with respect to the effective implementation of the Act. This was attributed to several reasons including conformance to organisational global anti-harassment policies, sufficient monetary resources to create and implement internal complaints’ mechanism as well as awareness training, lack of fear of reporting among aggrieved persons (perpetrators were often transferred to other branches) and the consequent lack of retaliation against complainants.
While the Act does not mandate the transfer of the complainant and/or the alleged culprit during the inquiry, it was reported that women employees felt comfortable sharing details of SHW at larger companies where there was scope for transfer. ICC members and in-house counsel adduced that they often recommended both the complainants and the alleged culprit either work-from-home or go on a leave of absence prior to and during the pendency of an inquiry. This recommendation is of great practical significance: firstly, it ensures that both parties do not seek to unjustly influence the ICC or potential witnesses in any manner. It also ensures that the alleged culprit does not malign or intimidate the complainant at the workplace into withdrawing the complaint. Any such retaliatory acts prior to or during the inquiry can also be reported to the ICC members
It was observed that the effective application of the Act in mid-level and small-scale organisations (with employees ranging from 500-100) as well as in the unorganised sector (this includes agricultural and construction workers, migrant labourers etc.) was and continues to be a challenge. With poor rates of education, lack of access to healthcare and other fundamentals, lack of awareness on what constitutes SHW, inherent sexism in the job and extreme poverty dictating the difficult lives of women in the unorganised sector. One of the biggest challenges to the effective implementation of the Act is the lack of reporting (under-reporting) of SHW incidents. The reasons for silence are many: Fear of loss of job, family pressure to leave the job, suspicion of husband about the woman having an affair, other male colleagues taking advantage of vulnerability, sense of shame and not wanting to be seen as a ‘bad’ woman etc. Others reasons cited by experts include the cumbersome ICC process, the lack of awareness about which body to approach to complain and the lack of encouragement from managers/HR regarding receipt/acceptance of the complaint(s) as deterrent factors.
Another challenge, which has eluded the architecture of the Act, is the lack of liability in the event of non-adherence of the employer to the recommendations of the ICC/LCCs. Section 13 of the Act enumerates that the ICC/LCC provide a report of its findings to the employer/District Officer within a period of ten days from the completion of the inquiry. Furthermore, the employer has an obligation to submit an annual report with the number of cases filed, if any, and their disposal under the Act (section 22). However, there is no monitoring provision governing a violation of section 13 or section 22.
The most prominent challenge to the Act’s implementation however appears to be the lack of stringent punishment on the employer. At present, as laudable a legislation as it is, the Act fails because of the lack of clarity on definitions of the LCC, the District Officer, ‘Service Rules’ and so can cause great confusion whilst implementation. The Act invests a great deal of responsibility in the employer – but there remains no recommended structure for the ICC process (however the courts have attempted to step in here), no guidance on information required for the Annual Report, a lack of clarity on the appellate process of the ICC, no strictures relating to failure to comply with non-retaliation requests of the ICC and so on. These ambiguities need to be remedied by the lawmakers.
(Shivakami Kumaramangalam is a trained lawyer and a practicing legal consultant. She studied law at the prestigious ILS Law College, Pune, India and later graduated with a Masters in Law from the internationally acclaimed University of Warwick, United Kingdom. Her thesis, submitted in
September, 2006 evaluated the crucial Vishaka vs. The State of Rajastan on sexual harassment law.
She continues to work in the field of workplace discrimination.)
(This article is carried in the print edition of November-December 2018 issue of India Foundation Journal.)
