Sexual Harassment Of Women At Workplace Act, 2013 A Half Baked Move To Women’s Safety At Work
It was in year 1997 that the Hon’ble Supreme Court of India, in Vishaka and Others Vs. State of Rajasthan and Others (“Vishaka Judgment”), acknowledged the gravity of sexual harassment of the working women at the workplaces and laid down guidelines thus making it mandatory for employers to prevent the commission of acts of sexual harassment and also to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. It was held by the Hon’ble Supreme Court held that the guidelines framed by the it should be strictly observed in all work places for the prevention and enforcement of the right to gender equality of the working women. It was observed by various Courts that the guidelines and norms framed by the Hon’ble Supreme Court in Vishaka Judgment have not been followed in workplaces strictly. With the change in time and increase in work participation rate of women, it was felt that guidelines and norms are not sufficient to deal with the incidents of sexual harassment of women at workplaces. Therefore it became utmost necessary to enact a comprehensive legislation focusing
solely on prevention of sexual harassment as well as providing a faster and easy redressal mechanism. A strong piece of legislation was the need of the hour to deal with this issue and accordingly the Act was enacted in 2013 In furtherance of its objective the Act also included various issues which remained unaddressed in the past such as extension of the definition of workplace to include almost all types of establishments including private sector organization, dwelling places or houses, inclusion of the term domestic worker and unorganized sector in order to address the issue of sexual harassment of women. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 & Rules.
After a span of 16 years since the guidelines issued by Hon’ble Supreme Court, India finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the ‘Act’) for prevention of sexual harassment against women at the workplaces in 2013. The Act came into force on 9 December 2013 along with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”)
Objectives sought to be achieved The Act is enacted by the Indian Parliament with the objective to provide protection to women against sexual harassment at workplace and prevention and redressal of complaints of sexual harassment and also for matters connected therewith or incidental thereto. Sexual harassment is a violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and right to life and to live with dignity under Article 21 of the Constitution of India. Sexual harassment is also considered a violation of a right to practice any profession or to carry on any occupation, trade or business as guaranteed under article 19 (g) which includes a right to a safe environment free from sexual harassment.
“Hon’ble Supreme Court held that the guidelines framed by the it should be strictly observed in all work places for the prevention and enforcement of the right to gender equality of the working women. It was observed by various Courts that the guidelines and norms framed by the Hon’ble Supreme Court in Vishaka Judgment have not been followed in workplaces strictly”
Sexual Harassment The definition of “sexual harassment” in the Act has been adopted the from Vishaka Judgment and includes any unwelcome acts or behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. In the case of Apparel Export Promotion Council Vs. A.K. Chopra, the Hon’ble Supreme Court while deciding an issue “whether the act of a superior officer (wherein such superior officer tried to molest his junior woman employee) would amount to sexual harassment ?” by placing reliance on the definition of the term ‘sexual harassment’ laid down by it in the Vishaka Judgment (which is similar to the definition of the Sexual Harassment provided in the Act) held that “the act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment…”. Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any workplace. This section further provides the circumstances which if present or connected with any act or behaviour of sexual harassment may amount to sexual harassment such as implied or expressed promise to preferential treatment or implied or explicit threat of detrimental treatment in her employment, implied or explicit threat about her present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, humiliating treatment likely to affect health or safety of a woman.
Key points of the act. Internal Complaints Committee: With The enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, it has now become mandatory for every employer to constitute an internal complaints committee (“ICC”) which would entertain the complaints made by any aggrieved women. The members of the ICC are to be nominated by the employer. ICC should consist of: i) A Presiding Officer , ii) Not less than two members from amongst employees preferably committed to the cause or women or who have had experience in social work or have legal knowledge and iii) 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. To ensure participation of women employees in the ICC proceedings, the Act requires that at least one-half of the members of ICC nominated by employer are women. Local Complaints Committee: Under the Act there is also a Provision to form Local Complaints Committee (LCC) for every district for receiving complaints of sexual harassment from establishments where the ICC has not been formed due to having less than 10 workers or if the complaint is against the employer himself. Procedure to Complaint: The Act stipulates that aggrieved woman can make written complaint of sexual harassment at workplace to the ICC or to the LCC (in case where a complaint is against the employer), 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. Reasonable assistance shall be rendered by the presiding officer or any member of the ICC, if the aggrieved woman is unable to make complaint in writing, (or the reasonable assistance shall be rendered by the Chairperson or any member of the LCC, in case the aggrieved woman is unable to make complaint in writing to the LCC,) for making the complaint in writing. As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, where the aggrieved woman is unable to make a complaint on account of her physical incapacity, the same may be filed inter alia by her relative or friend or her co-worker or an officer of the National Commission for Woman or State Women’s Commission or any person who has knowledge of the incident, with the written consent of the aggrieved woman. ANALYSISSexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Legislation”) was certainly one of the biggest step for not only providing protection to women at work but also towards employment laws. This act can be regarded as a first successful effort towards building a safe and dignified working atmosphere for the women in our Indian society. Prior to coming into force of this enactment, there was a black hole in
the Indian law with regard to protection of women in the workplaces that is, the place where she spends almost half of her time every day. In an attempt to give legal clothing to the judicial pronouncement and guidelines led down in the case of Vishaka and others vs. State of Rajasthan1, this Legislation gave true meaning to Articles 14, 15 and 21 of the constitution of India thereby giving effect to the right to work with dignity and freedom of life and liberty to fair sex.
But the question that arises to be considered is “Whether the Legislation has been able to serve its purpose or this Legislation is mere a written piece of law?” “Whether we been able to secure the benefits of this Legislation efficiently?” We have come only half way with the passing of this enactment the other half would be achieved only if it’s implemented in true sense.
It is very much clear that this Legislation has not been implemented well to serve its underlying purpose. Though the Act has been accepted and welcomed by female leaders in all the organizations as well as female employees, but the same is not true for the male employees because this Act is targeted against men. The major reason for unacceptability of this Act is the fact that instead of creating safe environment for women by its positive effect, it tries to do the same by creating a negative atmosphere. These drawbacks are inter related and should be seen as a whole to appreciate the real effect. To make this Legislation effective first and foremost step would be to make it gender neutral completely and also to cover the male employees in the definition of aggrieved employees thereby directing against both male and female employees alike. While coming to the issue of analyzing misuse of this Legislation, it is felt that the same is not required as it is a settled position that like many other legislation such as matrimonial or rape law even this legislation can be misused but for this reason it would not be appropriate to repeal the same. But having regard to the working under a constant pressure of getting trapped under such laws and misuse of the same by female employees to get advantages at the workplace is a big issue and should not be ignored. Some sort of possibility of misuse would always be there but at least to the extent possible it should be minimised by making the Legislation strong enough to create a fear even in the minds of potential misusers to think thrice before making any false allegation or using this Legislation as a tool to climb up professionally.
Next area of analysis is a procedural one. The requirement of constitution of an internal complaints committee (ICC) leads to confusion and therefore needs to be clarified. Firstly, the current language of the legislation gives the impression to appoint any employee itself who has knowledge of law or such as a member of ICC, it should therefore be made a strict requirement that only an outsider or a NGO worker who is unrelated to the management of the organization be made a member of ICC. Second issue is with regard to the requirement of a separate ICC for each branch and office with more than 10 employees is vague.
Several questions are left unanswered like, What if there is no permanent female employee but only temporary female staff, interns or trainees? What if there is only one or two female employees and total number of employees is less than 10? Thus, this requirement of separate ICC is cumbersome as far as small organizations and unincorporated entities are considered and moreover many organizations mould this provision in a way that suits them and interpret it as per their fancies. Therefore it is very much required that such questions are answered and a clear picture is displayed as in how ICC would be constituted in all such cases. Moreover currently there is no provision which specifically describes the jurisdiction of LCC. Section 6 of the Act merely says that in case ICC is not instituted for less than 10 employees, then the matter would go to LCC leading to an impression that ICC is just an option and not mandatory requirement, therefore a clarification is needed with regard to this issue in the Act. There is also a requirement in the Act to submit annual report to District Officer. It is a hard reality that same is not being implemented by even 10% of the organizations. Implementation mechanism for this is not provided in the Act as a result this provision is hardly followed in real world. It is should be made stricter. To top it up this drawback it is also left unanswered by the act “who is a District Officer?” Until and unless employees are not made aware about who the relevant District Officer is and where is his office, how are they expected to approach him? Next is the issue that the Act focuses only on employment relationship rather than on the whole of the working world. This leads to immense confusion among professional, technical and educational institutions in relation to students, who are though not employed, even while forming part of such institutions while pursuing their education. The question which arises for consideration is “Whether the Act applies to such institutions?” The next issue that comes into the consideration is that the Act prescribes a statutory period of filing complaint as three months, which can be further extended by three months ‘for reasons to be recorded in writing’. This provision totally undermines the very objective of the Act as the same is neither provided under the guidelines issued by Hon’ble Supreme court nor any of the judicial precedents have ever discussed of laying down any period of limitation for filing complaints of sexual harassment at the workplace. The act also provides for a process of conciliation to be conducted by ICC at the request of the aggrieved woman prior to initiating an inquiry. This provision for conciliation is completely incongruous in law which purports to provide a redressal mechanism for women aggrieved by behavior which the statute itself prohibits. Apart from that, the statute fails to adopt the more nuanced approach to conciliation which is provided by CPC 1908, where conciliation /mediation procedure is handled by body quite separate from that adjudicating the dispute. However, the provision which holds the potential of the most harm to this statute is SECTION 14 which provides for punishment for filing false or malicious complaints leading false evidence or producing false documents. This provision has been criticized by Verma Committee Report as “Red Tag” provision and its existence on the statute book is most unfortunate indeed. Practically there are endless issues in relation to implementation of this Legislation. It would not to be of any surprise even if it is said that entire law dealing with the sexual harassment of women at workplace needs to be reframed to overcome these drawbacks and shortcomings. Though this Legislation was enacted with a motive to protect female employees from sexual harassment at work but unless the aforesaid pitfalls are addressed, the success of this Legislation would be only partial and not too effective.
– Khushbu Sahu