With thousands of intelligent and qualified women in India entering the workforce in nearly every field and industry, both in the public and private sectors, every year, one of the questions that takes precedence above all others is that of gender discrimination and sexual harassment at the workplace.
India’s progress in this regard has been a slow one – despite having signed the first of several international treaties addressing the rights of women several decades ago, including the Convention on the Elimination of All Forms of Discrimination Against Women in 1980, a comprehensive law on the issue of sexual harassment of women at the workplace has yet to come into force in the country.
This article attempts to briefly trace the history of sexual harassment law in India, examining the roles of both the judiciary and legislature in the producing the existing sexual harassment law in India.
Judicial Activism in Matters of Sexual Harassment in India
In the absence of affirmative action on the part of the Parliament in specifically legislating on sexual harassment at the workplace, it was finally the Indian judiciary which had to fill in the lacunae. Of primary importance is the judgment of the Hon’ble Supreme Court of India in Vishaka & Ors. v. State of Rajasthan & Ors. [AIR 1997 SC 3011]. Delivering this judgment in 1997 on a writ petition brought by social workers and NGOs further to the brutal gang rape of a social worker in a village in Rajasthan, the Hon’ble Court noted that the matter had been brought before it specifically to deliver ‘gender justice’ and address the need for rules to tackle sexual harassment at the workplace in the absence of a law to deal with this issue.
In this judgment, analyzing provisions of international conventions as well as the Constitution of India, the Hon’ble Court laid down certain basic guidelines formulated to deal with the issue of sexual harassment designed to form a part of the law of the land until the Parliament passed a comprehensive law
to deal with this issue which are reproduced below.
(taken from http://www.iiap.res.in/files/VisakaVsRajasthan_1997.pdf):
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
For this purpose,sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as :
a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non – verbal conduct of sexual nature.
where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might by visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Step:
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.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers’ Initiative:
Employees should be allowed to raise issues sexual harassment at workers’meeting and in other appropriate forum and it should be affirmatively discussed in Employer – Employee Meetings.
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject ) in a suitable manner.
10. Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
As seen above, these guidelines touched upon some major aspects of the matter of sexual harassment, some of which are enumerated below:
· The definition of sexual harassment is a broad and inclusive one, bringing into its purview both the public and the private sector;
· The employer has the obligation, amongst others, to publish a clearly-formulated policy on sexual harassment;
· Disciplinary action and, if required, criminal proceedings must be instituted by the employer against the person against whom a complaint of sexual harassment has been made;
· The employer is also mandated to address and assist in the prosecution of cases of sexual harassment by third parties against its employees and, if necessary, constitute complaints committees to address such complaints.
The Need for a Comprehensive Law on Sexual Harassment at the Workplace
The Hon’ble Court limited itself to briefly stating these guidelines as the first step in formulating legal rules to tackle sexual harassment. They were therefore brief, succinct and basic, the intention of the Hon’ble Court clearly being to provide a foundation upon which it hoped the Parliament would build a detailed and thorough law to address this issue, a temporary refuge until a permanent shelter was constructed by the law-makers.
After the passing of this judgment, these guidelines formed the law on sexual harassment at the workplace in India. Many employers formulated policies on sexual harassment and addressed complaints according to mechanisms based on these principles.
Despite this, many companies and places of work failed to implement these guidelines effectively since the guidelines lacked strong provisions for their enforcement. Thus, the need for a comprehensive and elaborate law on sexual harassment in order to efficiently combat cases of sexual harassment was greatly felt. Accordingly the government was forced to formulate a law to this effect, which we have mentioned in the section below.
The Prohibition of Sexual Harassment of Women at the Workplace Bill, 2010 – Building on the Foundation Laid Down in Vishaka
The Indian Parliament has now formulated the Prohibition of Sexual Harassment of Women at the Workplace Bill, 2010 (hereinafter ‘the Bill’). This Bill has been approved by both the Houses of Parliament but, as on the date of this article, is yet to receive the assent of the President and be notified.
The Bill has essentially been commended for being a broad in its scope. A reading of the Bill shows that the Legislature has essentially retained the principles and ideas of the guidelines laid down by the Hon’ble Supreme Court in India and has elaborated on the mechanism for enforcement and implementation of the law. Some of the salient features of this Bill, are:
· The definitions of the terms “employer”, “workplace” and “employee” are very wide and inclusive, thus allowing for this law to throw its net wide and bring within its purview several kinds of places of employment (including domestic dwellings and places travelled to in the course of employment) and kinds of employees (such as trainees and volunteers) both in the public and private sectors. For instance, a “workplace” has been defined to include the following:
“(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a cooperative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, nongovernmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial or financial activities including production, supply, sale, distribution or service;
(iii) a house or dwelling place;
(iv) any place, vehicle either by air, land, rail or sea visited by the employee arising out of, or during and in the course of, employment;”
The unorganized sector is also brought within the definition of the workplace and the Legislature has also taken pains to list several occupations which would fall within the definition of “unorganized sector”;
· The Bill provides for two kinds of committees to address complaints of sexual harassment at the workplace – the employer-constituted Internal Complaints Committee and the District Officer-constituted Local Committee. Complaints may be made to the Local Committee in cases where the Internal Complaints Committee has not been constituted by the employer or in cases where the person complained against is the employer himself. The constitution of the Committees has also been addressed, ensuring that they are headed by women and that not less than half of the members are women. The National and State Commissions for Women have also been empowered to receive complaints;
· The Bill provides for a time-bound mechanism for the carrying out of enquiries by the Complaints or Local Committee into complaints received by them. In this regard, they have been empowered to provide interim relief to the complainant, such as granting leave to or transferring the services of the complainant;
· Various kinds of disciplinary and legal action which may be taken against a person found guilty of sexual harassment have been enumerated;
· The Bill also contains penal provisions in case of any contravention of the orders of the District Officer with respect to orders of action against the person complained against and the payment of compensation to the aggrieved woman;
· Duties of an employer and a District Officer vis-à-vis sexual harassment have additionally been listed.
Thus, it is evident that the Parliament built on the principles of the guidelines laid down is Vishaka and laid down the scope of the law, mechanism for redressal of complaints and an effective means of enforcement of its provisions with penal consequences.
The Bill consolidates, elaborates and improves on the Vishaka guidelines in several ways as stated below:
· The Bill provides for a Local Committee in addition to the employer-created Internal Complaints Committee. It also speaks about appointing a District Officer to constitute such Local Committee to register complaints. The Bill ensures that the aggrieved woman has the option of approaching an impartial forum with her complaint, ensuring that acts of further victimization are reduced and impartial justice is delivered;
· The Bill lays down a time limit for carrying out enquiries into complaints of sexual harassment, to ensure a speedy redressal;
· The Bill provides for the involvement of the National and State Commissions for Women in several ways, including receiving complaints and over-seeing the implementation of this law;
· The Bill states a number of remedies which the District Officer may order (where no disciplinary or service rules exist at the place of employment) in case the person complained against is found guilty. In addition to suspension or termination of employment, the Bill also provides for (i) payment of compensation to the victim; (ii) revocation or suspension of licenses of the guilty; (iii) the cessation of benefits under a Central or State-sponsored scheme. The Bill therefore provides for additional deterrent and punitive punishments for the commission of acts of sexual harassment;
· The Bill provides for confidentiality of information on proceedings and the identity of the complainant, to the extent that the Bill specifically excludes any information on the complainant, the relief sought etc. being provided even if requested under the Right to Information Act;
· In order to avoid being abused, this Bill also provides for action to be taken against a complainant in case of false complaints;
· In terms of criminal action, in addition to assisting the complainant in filing a criminal complaint, the employer has also the duty to himself initiate criminal proceedings against the person complained against after the conclusion of the enquiry in cases where it his employee or without waiting for the conclusion of the enquiry, where it is a third-party.
The Bill contains several provisions which would facilitate the prevention and prosecution of acts of sexual harassment at the workplace and its notification would thus afford relief to thousands of women across the country.
However, this law does not deal with cases of sexual harassment of men at the workplace. This is a great lacuna in this law and leaves no remedy for men being harassed. It is therefore advisable for companies and employer to formulate similar policies to deal with cases of sexual harassment of men as well.
September 2012 update: This Bill has been passed by the Lok Sabha.
Disclaimer: As already stated above this article is aimed at bringing to the notice of the readers the law on sexual harassment in India. The above information / suggestions / guidelines / tips are generic in nature and should not be acted upon unless a professionally qualified legal consultant has examined the requirements of the relationship and has advised that some of the above terms may be made applicable to each case.
The information provided is “as is,” and “as available,” and meant for information only.