Legal expert Gaurav Vutts talks about the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Sexual Harassment at a workplace is considered violation of women right to equality, life and liberty. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth.
The Constitution of India embodies the concept of equality under Articles 14 and 15 and prohibits discrimination on grounds of religion, race, caste, sex, place, of birth or any of them. Article 19 (1) (g) gives the fundamental right to all citizens to practice any profession, or to carry on any occupation, trade or business. The right pre-supposes the availability of an enabling environment for women, which is equitious, safe and secure in every aspect. Article 21, which relates to the right to life and personal liberty, includes the right to live with Dignity, and in case of women, it means that they must be treated with due respect, decency and dignity at the workplace.
Article 11 of the Convention on Elimination of All Forms of Discrimination (CEDAW), to which India is a party, requires State parties to take all appropriate measures to eliminate discrimination against women in the field of employment. In its general recommendation No 19 (1992), the United Nations Committee on CEDAW further clarified that equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment at the workplace. India’s Commitment to protection and promotion of women’s constitutional rights as well as respect for its obligations under various international treaties is unequivocal. With more and more women joining the workforce both in organized and unorganized sectors, ensuring an enabling working environment for women through legislation is felt imperative by the Government. The Supreme Court of India in the case of Vishaka and Others v State of Rajasthan & Ors. [ 1997 (7) SCC 323] also reaffirmed that sexual harassment at workplace is a form of discrimination against women and recognized that it violates the constitutional right to equality and provided guidelines to address this issue pending enactment by Government.
Sec 2 (a) of the Act defines aggrieved woman; Sec 2 (e) defines domestic worker; S 2 (f) and (g) defines employee and employer; S 2 (h) defines internal committee, S 2 (i) defines local committee, S 2 (h) defines sexual Harassment which states that any of the unwelcome acts or behavior whether directly or by implication namely:
- Physical contact
- 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
S 2 (o) defines workplace, 2 (p) defines unorganized sector.
The Chapter II of the Act mandates that constitution of Internal Complaints Committee [ herein after referred to as IIC], Chapter III for Local committee. Chapter IV prescribes for Complaint. S 9 states Complaint of Sexual Harassment and prescribes various ways of preferring complaint to Internal Complaints Committee or to the Local Committee. Section 10 prescribes for Conciliation. S 11 prescribes for Inquiry into the complaint with time lines as per Act and Rules. Chapter V, S 12 prescribes for Inquiry into complaint action during pendency of Inquiry which provides:
- Transfer the aggrieved woman or the respondent to any other workplace;
- Grant leave to the aggrieved woman up to period of 3 months
- Grant such other relief to the aggrieved woman as may be prescribed;
- The leave granted to women shall be in addition to the leave she would be entitled;
S 13 provides for Inquiry Report- time lines like within 10 days:
- conclusion by ICC,
- ICC takes action for SH as misconduct in accordance with service rules;
- Deduct salary, wages of respondent
- Or pay sum to aggrieved woman
- If respondent not paying sum to aggrieved woman, forward order of the sum as an arrear of land revenue to concerned District Officer.
Section 14 prescribes for Punishment for false or malicious Complaint and false evidence.
S 19 prescribes for Duties of employer like:
- Provide safe working environment
- Organize workshops and awareness programs at regular intervals and sensitizing employees
- Provide necessary facilities to Internal Complaints Committee;
- Assist in securing attendance of respondent and witnesses before ICC
- Provide guidance to woman if she chooses to file complaint in relation to the offence under Indian Penal Code or any other law for the time being in force
- Treat sexual harassment as misconduct and initiate action
- Monitor timely submission of reports by Internal Committee.
KEY Take AWAY’s FOR WOMEN EMPLOYEE:
- Any women working in workplace, in private OR public sector if, she is being sexually harassed by any male co -worker MAY file complaint with the employer and its Internal complaints Committee [ ICC} explaining what kind of Sexual Harassment is being caused and by which male colleague by providing evidence on document/ mobile etc.
- The employer must take action under the applicable law.
- The employer has to send shown cause notice [SCN] to the RESPONDENT/ Male colleague or to the alleged harasser, ask reasons on the same with copy of the complaint.
- The employer has to keep the name of the women employee ultra – confidential to save her dignity and respect.
- If the women employee FEELS threatened by the respondent or any one or feels she should be given mandatory leave over her entitlement, or transferred to some other secure place, she should ask the employer to do so.
- The employer is duty bound to protect the rights of women and give her ample security.
- If the women feels that she intends to conciliate with respondent before the employer she may do so. The employer company, through its internal complaints committee will pass order to this effect.
- If the women files wrongful complaint against any male colleague which fails the test of evidence that no sexual harassment was done or committed by respondent employee the woman can also be penalized.
- The proportion of penalty can vary from damages, salary deduction, termination, counseling and initiation of criminal complaint under the penal code.
- All above aspects on procedure like filing of written complaint by women before internal complaints committee or local body receipt, service of show cause notice, reply, evidences, hearing of both parties before the internal complaint committee and final order are time bound.
- The Act, has sections and rules which are very easy and can be comprehended by any one.
- The women can always call upon this remedy to protect their dignity when working in organized or unorganized sector in time bound manner.
Case laws referred:
- Vishaka Guidelines