Laws to Prevent Sexual Harassment of Women at Work Place

Introduction

Sexual harassment of a woman is an attack on her dignity and equality. Every woman should be guaranteed a safe work place to enable her lead a life of her choice and work with dignity and equality. The legal right guaranteed to women for safe work was ratified by the Indian government way back in the year 1993 vide UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) adopted by UN General Assembly (1979). Today, as per prevailing law, all work place have legal mandate to provide safe environment to work to every women without the an element of sexual harassment. The history of the legislation vest in Bhawari Devi case who in the year 1992 was appointed as an agent of change to curb child marriages when she met with resentment and harassment from the men in the community and seeking justice for her invoked filing of PIL titled Vishaka vs. State of Rajasthan[1] which provided legally binding guidelines for three fold actions- prohibition, prevention and redressal for an act of sexual harassment at workplace which later on was transformed into an Act- Sexual Harassment of Women at Work Place (Prevention, Prohibition & Redressal) Act, 2013 (“Act”). The Act was enforced from December 9, 2013. The article focuses on understanding the ground implications of the Act from the perspective of an organization, individual and women.

A. Statistics for Understanding effective Law Enforcement

In most of the research work, it is stated that the root of the act of sexual harassment lies in patriarchy and the fact of mindset that men are superior to women and so some form of violence against women are acceptable. The mindset for such an act of sexual harassment and fear to suffer from inaction or non-disclosure has physical, physiological impact on individuality of a women and is beyond visualization of an offending gender or society at large. This vulnerability towards women in general is also an infringement to her right to equality besides attacking her dignity. The stigma is of immense dimension and especially because women were not coming out in open due to numerous reasons which includes:

• Consequences from harasser
• Loosing one’s livelihood
• Impact on reputation

There is a need to curb the offence by giving the required legal support to enable her take the harasser to task for committing an unlawful act.

Statistically if we examine, it is a glaring reality that 93% women are employed in informal sector and they need protection under law from any such act, which prevents them from coming forward to work. The Preamble of the Act itself highlights that sexual harassment is violation of fundamental rights of women equality guaranteed under article 14[2], article 15[3] and article 21[4]. The government has said that 526 cases of sexual harassment of women at workplace were reported in the year 2014. In a written reply in Lok Sabha, Women and Child Development Minister Maneka Gandhi has said that 57 cases were reported at office premises and 469 cases were registered at other places related to work during 2014.The National Crime Records Bureau (NCRB) has started collecting data under insult to the modesty of women (section 509 of IPC) at office premises and other place related to work since 2014. The Ministry had issued advisories to all States/Union territories on December 23, 2013 and 27 October 2014 to ensure effective implementation of the Act. The ministries/departments in government have also been advised to ensure the compliance of the Act time to time. The ministry has also taken up the matter with the Ministry of Corporate Affairs for the constitution of Internal Complaints Committee in the accordance with the Act as a mandatory disclosure under Companies Act, 2013.

B. Basic Understanding about the Law

In 2013, Government of India notified the Act, which was consistent with the Vishaka guidelines issued by the Supreme Court of India. Since the Act focuses on workplace and the issue of sexual harassment, it is important to understand the definitions related to the subject.

(a) Workplace: The Act extending to whole of India defines workplace as any place visited by the employees arising out or during the course of employment including transportation provided by the employer for undertaking such a journey.

As per definition it covers both organized and unorganized sector. Unorganised sector in relation to the workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

 (b) Sexual Harassment: The Supreme Court in the aforesaid guidelines defined the act of sexual harassment as:

• Unwelcome and Sexually determined
• Physical, verbal or non-verbal conduct
• A demand or request for sexual favors
• Showing pornography
• Any unwelcome conduct of sexual nature

Sexual Harassment as defined under section 2(n) of the Act includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

1. Physical contact and advances; or
2. A demand or request for sexual favours; or
3. Making sexually coloured remarks; or
4. Showing pornography; or
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Examples of behavior that constitute sexual harassment at Workplace as outlined in Ministry of Women & Child Development’s handbook:

• Making sexually suggestive remarks or overtones.
• Serious repeated offensive remarks or such as teasing related to persons body or appearance.
• Offensive comments or jokes
• In appropriate questions, suggestions or remarks about persons sex life
• Displaying sexiest or other offensive pictures, sms, mms or posters, whatsapp or e-mails.
• Intimidation, threat, blackmail around sexual favours
• Threat, intimidation or retaliation about employees who speak against the harassment.
• Unwelcome social invitations, flirtings.
• Unwelcome advances with promises or threats explicit or implicit.
• Physical contact such as touching and pinching.
• Careassing, kissing and fondling against the will
• Persistently asking someone out.
• Stalking, abuse of authority or power.
• Falsely accusing or undermining person behind close doors for sexual favours
• Controlling the person’s reputation by rumor mongering about private life.

Examples of behavior that indicate workplace sexual harassment and merit inquiry as outlined in Ministries handbook:

• Criticizing, blaming, reprimanding or condemning an employee in public
• Exclusion from group activities or assignment without valid reason.
• Statement damaging person’s reputation and career
• Removing areas of responsibility unjustifiably.
• Inappropriately giving too little or too much work.
• Constantly over-ruling authority without a just cause
• Blaming an individual with a just cause.
• Repeatedly singling out employee by giving her demeaning jobs, which are not her regular jobs.
• Insults or humiliations or repeated attempts to exclude or isolate the person.
• Arbitrarily taking disciplinary actions against the employee.
• Controlling the person by withholding the resources
• Systematically interfering with normal work conditions.

C. Redressal Mechanism under the Act

(1) Internal Complaint Committee

To understand do’s and don’ts of an Internal Complaint Committee (“ICC”), it is important to reflect upon the definition of an employer.

The employer is required by an order in writing to constitute the Internal Complaint committee. If the administrative unit or the offices is located in different places, at division and sub-divisional level then the ICC would be formed at all administrative units or offices. The Composition of ICC consist of the Women Presiding Officer (preferably Women employed at Senior Level at Workplace, if not available then presiding officer shall be nominated from other offices or units of the workplace, any other workplace of same employer or other department or organization), two members from the employees committed to cause of women or have social work or have legal knowledge and one member committed to cause of women or person familiar with issues relating to sexual harassment which includes NGO and associations. One half of the total membership would be women.

(2) Local Complaint Committee

The effort to provide hassle free environment for women in unorganized sector or small establishment to work in environment free from sexual harassment has been provided under the Act by constitution of Local Complaint Committee (“LCC”). The LCC is for establishment less than 10 workers or which hears the complaint against the employer or from domestic workers. The District Officer under the Act discharges the functions for LCC who are notified by appropriate government and who are ADM/DM/Collector or Deputy Collector. The District Officer will appoint one Nodal Officer for Block/Taluka and Tehsil level for rural and tribal area and for ward and municipality in urban area.

Fig. 1: From Handbook on Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal), 2013 by Ministry of Women & Child Development, GOI.

D. Filing a Complaint of Sexual Harassment at Workplace

In order to make a complaint before the ICC or LCC as the case may be, the following ingredients/actions are required:

• Aggrieved women
• Complaint to be given in writing
• Complaint filed within a period of three months or within a period of three months of last incident, if it is arising out of series of incident.
• If the complaint cannot be made in writing then all possible assistance by LCC/ICC for the purpose of same.
• Extension of time be given, if the woman was unable to approach within that time.

The mode of hearing the dispute is conciliation proceedings and the initiative would be made for settlement of the same without any monetary compensation. The settlement arrived at by ICC or LCC as the case may be is then forwarded to the Employer or District Officer respectively. If no settlement is arrived the employer may proceed to make enquiry on the basis of service rules applicable to the Respondent. In case of domestic worker, if a prima facie case is made out, then the District Officer may forward the complaint to police officer for registration of case against the person under section 509 IPC[5]. If there is non-compliance of the settlement arrived at between the parties, then ICC or LCC as the case may be has power to send the complaint to the police. Where both the parties are employees they should be given a copy of the findings to enable them to make representation before appropriate court. During the period of enquiry the aggrieved women can request for transfer, leave.

E. Preventive & Prohibitive Mechanism & Role of Employer

(i) Primary responsibility: To provide safe working environment.

(ii) Secure attendance of the Respondent & Witness when enquiry is initiated.

(iii) To provide assistance to women, if she chooses to file complaint under IPC.

(iii) On completion of Enquiry: Enquiry report must be shared within 10 days of completion with the employer. On the basis of enquiry report would share the recommendations with the employer. If the charges were proved against the respondent the following actions would be taken:

• As prescribed in the service rules
• If no such rules exist, in such manner as may be prescribed
• Deduction from salary or wages as the case may be too be paid to aggrieved women.
• If the perpetrator of the crime is not an employer, help her file the complaint under IPC.

 If the employer fails to form the Internal Complaint Committee or fails to take actions under section 13, 14 or 22 of the Act or contravenes or abets to contravene the provisions of the Act is liable for punishment under the Act for each failed attempt and even license to practice or carry business can be cancelled. The offence under the Act are non-cognizable.

(iv) Treat sexual harassment as misconduct under service rules.

F. Important Cases

Few of the cases that caught everyone’s attention in media reporting’s on the sensitive issue are mentioned below to understand the sensitivity of the issue. Delhi Police registered a case against Former Chief of the Energy and Resource Institute (TERI), R K Pachauri, the probe agency has charge sheeted the scientist for allegedly sexually harassing and outraging the modesty of a former woman colleague. In 2010, a few members of Indian Women’s Hockey team complained of being sexually harassed by the then chief coach Maharaj Krishan Kaushik. In yet another incident of sexual harassment, gymnastics coach Manoj Rana and gymnast Chandan Pathak were booked for allegedly sexually harassing a female gymnast at the Indira Gandhi Indoor Stadium while attending a national camp for the Asian Games 2014. A budding talent who could have made India proud in the boxing ring like Mary Kom chose to end her life following the continuous onslaught of harassment by her coach. Twenty-one-year-old S Amaravathi consumed poison at Hyderabad’s Lal Bahadur Stadium for not being able to cope with constant altercations with her coach Omkar Yadav. Former Supreme Court Justice (Retd) AK Ganguly, accused in a sexual harassment case involving a law intern decided to resign as West Bengal Human Rights Commission chairman. A woman Additional District and Sessions Judge of Gwalior, Madhya Pradesh alleged sexual harassment. The issues are sensitive, if proved and disproved both, has dimensions of occurrence across different workplace and there is a need to handle them sensitively. Few important judgments need mention.

In Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997 the Hon’ble Apex court mentioned:

“3. Preventive Steps: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.”

 The Hon’ble Apex court in Apparel Export Promotion Council vs A.K. Chopra  on 20 January, 1999 held that:

“………….In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression molestation. They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance……….. Any lenient action in such a case is bound to have demoralizing effect on working women. Sympathy in such cases is uncalled for and mercy is misplaced. Thus, for what we have said above the impugned order of the High Court is set aside and the punishment as imposed by the Disciplinary Authority and upheld by the Departmental Appellate Authority of removal of the respondent from service is upheld and restored. The, appeals, thus succeed and are allowed.”

G. IPC  & Other Law on the issues of Harassment of Women

There are now specific law relating to Sexual Harassment at workplace but there are certain sections in the Indian Penal Code (IPC) and certain other Acts that protect the women’s from sexual harassment at workplace and they are as follows.

 (a) IPC: Section 354 IPC deals with assault or criminal force to a woman with the intent to outrage her modesty and lays down that: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or both. In cases where the accused sexually harasses or insults the modesty of a woman by way of either- obscene acts or songs or- by means of words, gesture, or acts intended to insult the modesty of a woman, he shall be punished under Sections.294 and 509 respectively.  Under Sec.294 IPC the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place. Section 509, IPC deals with word, gesture or act intended to insult the modesty of a woman.

(b) Civil Remedy: Civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.

(c) Indecent Representation of Women (Prohibition) Act (1987): The section 3 provides for prohibition of advertisements containing indecent representation of women. Under this no person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement, which contains indecent representation of women in any form. Further section 4 provides for prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women. The provision says that no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form subject to exceptions.

Penalty-Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.

Section 7 (Offenses by Companies) holds companies where there has been “indecent representation of women” (such as the display of pornography) on the premises guilty of offenses under this act, with a minimum sentence of 2 years.

Conclusions

In India, there is a growing incidence of sexual harassment of women at workplace. With increasing presence of women at work place and a taboo for not being able to report the same for various reasons is a serious concern of giving liberty to perpetrators of crime. The following take aways of the article are mentioned below.

• India is signatory to Convention on the Elimination of all forms of Discrimination  Against Women (CEDAW), adopted by UN General Assembly in 1979.
• Sexual harassment of women at work place is violation of fundamental rights guaranteed under  the article 14, 19 of the Indian Constitution.
• There is a legal mandate now to provide safe working environment free from sexual harassment to women.
• An aggrieved woman is the one who is working, visiting a work place or is a student.
• Workplace includes dwelling house and transport.
• Sexual harassment generally include unwelcome sexually determined behaviour -physical contact and advances; a demand or request for sexual favours; or making sexually coloured remarks; or showing pornography; or, any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
• Complaint against the act of sexual harassment is in writing and is filed within three months of incident or last incident and delay condoned with reasons.
• Employer has an important role in discharge of the compliances under the Act.
• Reporting the incident in the annual report is important part of the Act. Although teeth can be added to this part for better enforcement of law.
• Help should given, if the aggrieved person wants to file complaint under the Indian Penal Code.
• Settlement for the complaint cannot be done by monetary compensation.
• Regular Sensitization and awareness programmes and Display of contraventions of the Act are under preventive measures.

[1] AIR 1997 SC 3011

[2] 14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[3] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b)the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

[4] 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

[5] 509. Word, gesture or act intended to insult the modesty of a woman-Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.