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July 09, 2015

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Cracking The Whip Against Sexual Harassment At Workplaces


- Parneet Birgi, [ ]

Parneet Birgi

The ruling government is tightening the reins against sexual harassment at workplaces; however, the law needs to be followed in both letter and spirit to ensure a safe and productive work environment for our women

Indian Government


has become serious about strictly implementing the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (Sexual Harassment Law) which was enacted with effect from December 9, 2013. In a recent written reply to Rajya Sabha (India’s Upper House of Parliament), Union Women and Child Development Minister Maneka Gandhi stated that employers who fail to implement the Sexual Harassment Law would face fines of `50,000 and in case of subsequent violations, the fine may double or penalties may lead to cancellation of license or withdrawal or non-renewal of registration to carry on business. The Sexual Harassment Law casts a responsibility on every employer to create an environment which is free from sexual harassment. "Employers are required to organise workshops and awareness programmes at regular intervals for sensitising employees about the provision of this legislation and display notices regarding the constitution of Internal Committee, penal consequences of sexual harassment, etc.," Mrs Gandhi said in her reply. She also stated that most government departments, 90 per cent of the private sector and above all, even Parliament, do not have the mandatory Sexual Harassment Committees in place, this, despite over a quarter of India’s workforce being women.

India’s tryst with recognition of harassment against women at the workplace began with the 1997 judgement of the Hon’ble Supreme Court of India in Vishaka and Others Vs. State of Rajasthan and Others which acknowledged the gravity of sexual harassment of working women and laid down guidelines for employers to prevent the commission of acts of sexual harassment and to provide the procedures for resolution, settlement or prosecution of sexual harassment. The guidelines issued by the Hon’ble Supreme Court were treated as law under Article 142 of the Constitution of India.

Unfortunately, for over 15 years, the dictat of the Hon’ble Supreme Court of India remained a letter of law not followed in spirit by organizations including those run by the Government of India such as PSUs.

Various Courts from time to time observed that the guidelines and norms framed in the Vishaka Judgment were not being followed strictly enough in workplaces. This inaction led the previous government to enact the Sexual Harassment Law which provides a statutory right of redressal against workplace harassment against women besides providing a preventive framework.

In the recent case of ISG Novasoft Technologies Ltd. vs Mr. Justice T.N.C. Rangarajan, the High Court of Madras directed a company to pay compensation of `1.68 crores for not constituting the committee to deal with sexual harassment issues ("Vishakha Committee") as mandated by Supreme Court's Vishakha Guidelines. The HC observed that the existence of a grievance redressal committee and an ombudsperson in the organisation was no substitute for a Vishakha committee.

India's population of 1.2 billion has around 48.5% women who constitute 26% of rural workers and about 14% of the urban workforce. This participation rate is rapidly growing and women are increasingly occupying high positions of responsibility in the corporate world. Protection against sexual harassment is a cornerstone to enable a safe and congenial workplace for women and to encourage diversity at the workplace.

Sexual harassment is a violation of the fundamental right of a woman to equality under Articles 14 and 15 of the Constitution of India and the right to life and to live with dignity under Article 21 of the Constitution of India. Sexual harassment is also considered a violation of the right to practice any profession or carry on any occupation, trade or business which includes the right to a safe environment free from sexual harassment.

The Sexual Harassment Law adopted definition of 'sexual harassment' from Vishaka Judgement and the term includes any unwelcome act 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. 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 of 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, etc.

The Sexual Harassment Law makes it mandatory for every employer to constitute an internal complaints committee (ICC), which entertains the complaints made by any aggrieved women. The members of the ICC are to be nominated by the employer and ICC should consist of i) a Presiding Officer who shall be a woman employed by the organization, ii) not less than two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge and iii) one member from amongst non-governmental organizations (NGOs) or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.

The Sexual Harassment Law requires that at least one-half of the members of ICC nominated by employers should be women. The law also requires formation of Local Complaints Committee (LCC) for every district by district administration 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.

The Sexual Harassment Law provides that an aggrieved woman can make a written complaint of sexual harassment at the workplace to the ICC or to the LCC (in case 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.

If the aggrieved woman is unable to make a complaint in writing, reasonable assistance shall be rendered by the presiding officer or any member of the ICC (or in case the aggrieved woman is unable to make a complaint in writing to the LCC, the reasonable assistance shall be rendered by the Chairperson or any member of the LCC) for making the complaint in writing.

In case of physical incapacity, a complaint may also be filed inter alia by her relative or friend or her co-worker or an officer of the National Commission for Women or State Women's Commission or any person who has knowledge of the incident, with the written consent of the aggrieved woman.

In case of death of the aggrieved woman, the complaint may be filed by her legal heir or a person with knowledge of the incident with such legal heir's permission. Unless a settlement is arrived between the parties, ICC is required to complete its inquiry into the complaint within ninety days and submit a report for action of employer within ten days of completion of inquiry.

In order to comply with the provisions of the Sexual Harassment Law in letter and spirit and make workplaces truly safe and free of harassment and discrimination, the following steps must be adopted:

Employers are required to organise workshops and awareness programmes at regular intervals for sensitising employees about the provision of this legislation and display notices regarding the constitution of Internal Committee, penal consequences of Sexual Harassment etc.,” Mrs. Maneka Gandhi
  1. A clear and cohesive sexual harassment policy must be formulated, which is duly implemented with a zero tolerance mandate. This policy must follow legal requirements and should also be aligned with the organization's disciplinary process under other employee policies. The policy should also be clearly communicated across multiple channels within an organization and a tone at the top should be set highlighting its significance.
  2. The ICC should be constituted, which clearly reflects independence and unbiased approach of the organization and which imbibes trust and openness.
  3. Regular training and sensitisation of employees should be conducted (at least annually) with a focus on 'unacceptable conduct' and respect and dignity of all coworkers.
  4. Complaints must be taken seriously and the right protocols should be followed to ensure safety of employee making the complaint. It should be ensured that there is no fear of retaliation. ICCs should record evidence carefully and analyse it in balanced manner to submit a report on findings to management. Sometimes, interim steps such as separation of the victim from the accused or sending the accused on leave on a finding of prima facie strong case should be adopted. Finally, the punishment should be commensurate with the gravity of the offence and must be consistently applied.
  5. The GST Dispute Settlement Authority, proposed in the 115th Bill as a comprehensive dispute resolution mechanism, was met with opposition from the State Governments. In order to smoothen the introduction of GST in India, the Centre has entrusted the dispute resolution function to the GST Council, in the revised Bill.

It is important for organizations to go beyond the 'tick the box' exercise and implement the provisions of Sexual Harassment Law in its true letter and spirit. A safe work environment is also a highly productive one which leverages the diversity of skills, experiences and backgrounds and ensures dignity of people engaged in workplace.

 

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.

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