Injustice and inequality, although negative terms, are elements of the characteristic of Indian society. People across diverse genders face injustice in their everyday life. Men, Women and Transgender people face various kinds of physical and mental abuse. However, the focus of this paper is primarily on the inequality of women. In general, it talks about women’s status in Indian society, where they are subject to prejudice, harassment, exploitation and complete neglect at the workplace. In the paper, there is a critical analysis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act [1] (hereafter ‘the Act’). There is a need to revisit the provisions of the Act to highlight the insufficiencies at the practical level.
Sexual harassment all over the world is recognised as a violation of human right. It is declared a crime. Against a woman, it violates her dignity and honour of being a person. For a long time, sexual harassment was not visible in society [2]. Particularly with feminist movements, it has come to the forefront as a significant social problem, especially for women at the workplace.
Giving a fixed definition of sexual harassment is quite a challenging task. Still, it is evident that this term includes a violation of women’s human rights [3]. It is a behavioural problem. It is undesirable. It could be expected to make a person feel exasperated and offended. It carries humiliation and threatening effect. It includes any or all of the following and in any of its form(s):
Physical contact and advances
A demand or request for sexual favours
Making sexually coloured remarks
Showing pornography
Physical, verbal or nonverbal conduct of sexual nature
With the above-listed points, sexual harassment may have direct or indirect implications (Section 2(n), Chapter I of the Act). Furthermore, the workplace can be any site like office, company, enterprise, business, organisation, agency, institution or its affiliate. It can be any establishment owned privately or by the government. An employee and a visitor of such a place can be a victim of sexual harassment-for example, a traveller using public or private transport. A doctor or a nurse and a patient or a visitor in the hospital or nursing care could be subject to sexual harassment (Section 2(o), Chapter I of the Act).
Enactment of the Act and Judicial Response
The Indian constitution, as enshrined in its preamble, provides equality of status and opportunity. It belongs to all the citizens of the country. The constitutional doctrine for equality and personal liberty is contained in Article 14, 15 and 21 of the Indian constitution [4]. Sexual harassment, therefore, results in the violation of women’s fundamental rights, right to equality (as per Articles 14 and 15) and their right of living with dignity (under Article 21). The government of India enacted ‘the Act’ as an extension of ‘Vishaka guidelines’ issued by the Supreme Court in 1997. Vishaka guidelines acknowledge sexual harassment in the workplace as a human rights violation.
The UN general assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979. It is also signed and ratified by India [5].
Vishaka and Others V State of Rajasthan and Others [6] was a landmark judgment by the Supreme Court where the Supreme Court recognised a ‘vacuum in the existing legislation’ and that sexual harassment at the workplace is a significant issue. There is a need to deal with it immediately. The Supreme Court held that sexual harassment at the workplace violates fundamental human rights. Hence, the Supreme Court laid down various guidelines to prevent and address sexual harassment at the workplace in India. Bhanwari Devi, who was a social worker and worked in Rajasthan, was brutally gang-raped. Following this, Vishakha-A Group for Women’s Education and Research, an NGO and four other NGOs filed public interest litigation in the Supreme Court. The Supreme Court held that sexual harassment at the workplace violated the fundamental rights given by the Indian Constitution [4]. These rights mainly include Article 14 (Right to Equality), Article 15 (Prohibition of Discrimination), Article 19(1)(g) (Right to practice any profession or carry out any trade, occupation or business) and Article 21 (Right to Life and Personal Liberty).
The Supreme Court of India systematised guidelines concerning the responsibility of the organisation or the employer. It concerned preventing the acts of sexual harassment in the workplace. It is the employer’s responsibility to provide the procedure for resolving any complaint regarding sexual harassment. It set up a complaint mechanism by establishing an internal complaints committee in the workplace for redressal. The committee shall also create awareness by holding various programmes and educating the employees concerning the equal rights of the female employees, notably to prohibit sexual harassment and establish appropriate working conditions for women.
Most importantly, the Supreme Court laid down the definition of sexual harassment. The description includes all the features listed above in this paper. The Supreme Court also stated that the Central Government must enact legislation preventing and protecting sexual harassment at the workplace as soon as possible. It suggested that these guidelines by the Supreme Court would hold the force of law [7].
Despite the judgment of the Supreme Court in the case of Vishaka and Others V State of Rajasthan and Others [6], it was only in the year 2013 (sixteen years later) that the Central Government enacted the legislation to provide protection, prevention and redressal against sexual harassment of women at workplace. It was the case of Medha Kotwal Lele and Others v. Union of India and Others [8], which led to the making of the Act. In this judgment, the Hon’ble Supreme Court highlighted the non-compliance and non-adherence to the Vishaka Guidelines [9] in India’s workplaces. It urged the need for legislative enactment in this direction. Chapter I of the Act provides the conceptualised terms, including the definition of employer, employee and workplace. Every employer must prevent the Sexual Harassment of Women in their organisation. It also provides that the promise of preferential treatment or the threat related to the employment by the employer will also be counted as Sexual Harassment of women. It also provides that unwelcomed acts or behaviour such as physical contact and advances would amount to sexual harassment.
However, it is pertinent to mention that the Delhi High Court, in Shanta Kumar v. Council of Scientific and Industrial Research (CSIR) and Others [10], stated that a physical contact constitutes sexual harassment when it is with the colour of unwelcomed sexually determined behaviour. A mere accidental physical contact, even though unwelcome, would not amount to sexual harassment.
Provisions and Analysis of the Act
Though the Act is brought for the complete protection of women in the workplace, it does not cover all working women in its ambit. The definition of ‘workplace’ in the Act does not include workplace of women in armed forces, police, panchayats, establishments covered under The Factories Act [11] and Industrial Disputes (Central) Rules [12] and also agricultural workers. The Act also fails to protect women who were terminated after they faced sexual harassment at the workplace. Even if they were employees of an institution where they had to face sexual harassment, their accusations were ignored after termination from the service for one or the other reasons. They never get the opportunity to file a complaint [13].
Moreover, the definition of the ‘respondent’ in the Act uses the word ‘person’. This legislation is silent as to whether this person can be a woman or a transgender person. It is also worth mentioning that there have been several surveys and reports of men suffering or facing sexual harassment. However, there is no separate law for this purpose and even this Act does not protect men. This Act thus is gender-biased and not neutral, which it should have been. Chapter II of the Act requires an employer to set up an ‘Internal Complaints Committee (ICC)’ at each office or branch of an organisation employing at least ten employees to hear and redress grievances about sexual harassment. The Act requires that a senior-level woman employee must head the ICC and also that half of the committee members should be women employees. It is worth noting that this provision is quite an acrimonious one. Every organisation may not have a senior-level woman employee to head the committee, or it may not have the required number of women employees to constitute the committee. Thus, the Act does not clarify to whom the complaint is to be made if the employer fails to form the ICC. Hence there is a need for a more definite structure to check on the committee’s constitution.
The Act also does not say anything regarding the source and utilisation of funding for the ICC. Also, there is no provision in the Act laying down the expertise and credibility and capacity of the members who would constitute the committee. It creates much confusion while forming such a committee within the organisation. Section 11 of the Act gives powers of a civil court for summoning, discovery and production of documents to ICC. In contrast, the members are without any legal background and neither there is a provision of their training. However, the Rajasthan High Court, in the case of Ruchika Singh Chhabra v. M/S. Air France India And Anr. [14], held that an employer must nominate two members from amongst employees committed to the cause of women who have social work experience or possess legal knowledge. The court also said that the mere fact that the ICC’s presiding officer is lower in rank than the accused does not invalidate the constitution.
The Act also requires the inclusion of a non-employee in the ICC. Simultaneously, the employer and the complainant may have reliability issues with anybody from outside the establishment. Sexual harassment, in a cultural stance and also otherwise, is a sensitive matter. It necessarily requires confidentiality. The Delhi High Court, in the case of Tejinder Kaur v. Union Of India and Others [15] opined that the external member to the ICC should be a person associated with an NGO or an association committed to the cause of women or a person familiar with the issues relating to sexual harassment. In this case, the employer had appointed a labour lawyer as the external member of the ICC.
In the case of C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and Others [16], the Supreme Court laid down the process of ‘in-house procedure’. In this, the allegations against a judge are examined by his peers. Its constitution is under the charge of the Chief Justice of India; it is confidential and kept out of the public domain to preserve the credibility of the institution. However, in the case of Additional District and Sessions Judge ‘X’ v. Registrar General, High Court of Madhya Pradesh and Others [17], it was held that the bench examining such allegations should not be consisting of Judges from the same court.
Chapter III of the Act provides the provisions related to the Constitution and Jurisdiction of the Local Complaints Committee (LCC). The Act provides for the constitution of the LCC for the redressal of complaints of sexual harassment at the workplace. Every District Officer has to constitute in the concerned district an LCC for dealing with the cases of sexual harassment of those establishments where the internal complaints committee has not been constituted. The District Officer shall designate one nodal officer in every block, taluka and tehsil in the rural or tribal area and ward or municipality in the urban area to receive the complaints of sexual harassment. Such nodal officer is under obligation to forward such complaints of sexual harassment to the concerned local committee within seven days so that the committee can take action against the harasser at the earliest.
It may be noticed that the Act is very general and is not sensitive to different natures of the workplaces. The agricultural sector and residential areas for domestic help are not susceptible to LCC and its proceedings. Moreover, there is no internal committee to look into the ICC at the state level and LCC. Provisions for the creation of the same must be incorporated and mentioned in the Act. Chapter IV of the Act provides the procedure of making the complaint of Sexual Harassment. A Woman aggrieved of sexual harassment can make a complaint to the ICC or LCC along with the supporting documents and the names and addresses of the witnesses [18]. Section 9(1) states that the complaint is to be made within three months after the incident of sexual harassment and the said period if the ICC is satisfied, may be extended to six months. However, the given limitation period may prove cumbersome in some cases.
Moreover, it may not always be easy to satisfy the ICC to extend the time. In Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust (HLFPPT) and Others [19], the Delhi High Court held that a complaint could not be rejected by the ICC merely because the complainant had delayed in filing the complaint. In this case, the complainant’s allegations were supported by the statements of several other witnesses [20]. The witnesses had corroborated that the accused had indulged in similar conduct with them as well. It is also important to note that the witness (es) or other employees may not readily or easily cooperate, due to which the complaint may not be filed within the required time duration.
The Act prescribes (at least) six copies of the case, including the name of the victim and those of witnesses. In most circumstances, it jeopardises the case, as the victim and the defendant may threaten the witness (es). Hence the confidentiality of the victim’s information or witnesses or the other sensitive case details is essential. Also, in sexual harassment cases, it often happens that the employer or the person against whom the complaint is made retaliates against the complainant by dismissing her services or creating a hostile environment. There is no provision in the Act or the rules that deal with this aspect, making it a tough call for women to approach the Act’s mechanism [21].
The Act in its Section 10(1) provides that the ICC or the LCC as the case may be before initiating any inquiry and at the aggrieved woman’s request take steps for conciliation between her and the respondent. The given provision does not align with the Vishaka guidelines. It is somewhat contrary to the very spirit and nature of the guidelines. Chapter V of the Act empowers the ICC or the LCC during the pendency of the inquiry to recommend to the employer, at the request of the aggrieved employee, interim measures to prevent any further harassment of a woman. These are the basic things that should be taken into consideration when determining the quantum of compensation [18].
It is pertinent to mention that monetary compensation cannot restore the dignity of a woman. Often, when a woman suffers from any such harassment and goes on to file the complaint, her aim is not to draw the money from her perpetrator but rather have him punished for his wrong and refrain him and even others from indulging in such acts. So this compensation though maybe helpful in meeting the other expenses arising out of the incident, should not have been made real remedy in such cases.
One of the grounds under Section 15 of the Act based on which the compensation is to be determined is the respondent’s income and financial status. This method of imposing the penalty seems to be discriminating as the person with a lower income will have to pay a soft fine and one having a high income will have to pay more fine even though both are involved in sexual harassment. Moreover, though they suffered in similar ways at their perpetrators’ hands, the victims would receive additional compensation, one meagre and one high. Another exciting inclusion in the statute is the employer’s ability to punish the complainant in case of a false or malicious complaint. Although meant to protect the employer’s interests, this provision is likely to deter victims from reporting such incidents and filing complaints, which may defeat the purpose for which the law has been enacted.
One of the disputable areas under this Act is the broad scope of false allegations. However, the Act provides for action that the ICC or LCC can take against the false or malicious prosecution against false complaints made because of bad relationships or personal enmity or to seek revenge. Such complaints can lead to untrue allegations and unnecessary litigation. If such a matter comes before the committee, it not only affects the reputation of the man falsely accused but also prejudicial to his family.
Chapter VI of the Act provides the Employer’s Obligations and Duties. The employer has to provide a safe working environment in the workplace. He is to display at any conspicuous place in the workplace the penal consequences of sexual harassment, organise workshops and awareness programmes for employees and orientation programmes for ICC members, provide necessary facilities to ICC or LCC as the case may be. Thus, this Act puts a fair amount of burden on the employer, which may hamper his business or work. He will have to essentially spare time and focus or even money for all these programs, assistance and facilities. At the same time, he does not get any outstanding remuneration or funds for performing these.
The Act requires the employer to address the grievances in a time-bound manner, which in several cases may not be practically possible as the employees or witnesses may not readily cooperate. The Act does not place much responsibility on the state’s shoulders concerning the implementation of the Act. The primary onus of the implementation of the Act lies on the employer. The role of the state as such is negligible. Chapter VII of the Act provides the duties and powers of the District Officer. He requires monitoring the timely submission of reports furnished by the Local Committee; or taking such measures as may be necessary for engaging non-governmental organisations to create awareness on sexual harassment and the rights of women [18].
Despite this provision, there is not much awareness regarding the various aspects of the Act. For example, there is vagueness about the definition of what exactly constitutes sexual harassment. It might be a very subjective experience for each woman. Hence, women might often be unaware of the citation of the difference between physical and sexual harassment [21]. Therefore, clarity about the same must be incorporated. Chapter VIII of the Act contains the miscellaneous provisions, which provide that the committee should prepare and submit the annual reports to the employer and the District Officer. It also provides that if an employer fails to constitute an Internal Complaint Committee or does not comply with the requirements prescribed under the Sexual Harassment Act, a monetary penalty of up to Rupees 50,000 may be imposed on him. A repetition of the same offence could result in the punishment being doubled and de-registration of the entity or revoking any statutory business licenses. So it is mandatory to comply with the provisions of the Act [18].
Though the Act is present on paper, the implementation rate is low. There is a lack of knowledge in the organisations and hence the Act is not adequately implemented. Even after the passing of the Act, the cases of sexual harassment have not decreased in India. The case of Tarun Jit Tejpal v. the State of Goa and Anr. [22] is one of the high profile cases. In a five star hotel, investigating officer Sunita Sawant charged Tejpal under the offence of Sexual Harassment and for taking advantage of his official position and also for rape [18]. Tejpal was arrested in Nov 2013 and was then granted bail in July 2014. The proceedings are still going on. From this incident, it is clear that even though the government has brought many legislations forward, it has not effectively prevented sexual harassment against women at workplaces.
Although the Act provides a redressal mechanism within the workplace, it is not short of loopholes, as mentioned above. It is essential that proper implementation of the Act is done, awareness regarding the Act is created and the employers undertake prevention mechanism as provided under the Act. It is required to ensure gender equality and provide a safe working environment for all people irrespective of their gender identity.
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