Women‘s right and well-being are under threat all the time, either within the family or outside its confines. One such harassment is Sexual Harassment, which is the oldest and the most common form of harassment used by men to show their dominance over a woman or girl simply because of her gender and her vulnerability. Working women who already have to fight the patriarchal systems of our society are considered easy targets by the male population. The Supreme Court of India in Vishaka v. State of Rajasthan case established for the first time that sexual harassment violates a woman’s rights in the workplace and is thus not just a matter of personal injury. Based on the guidelines of this case, The New Law has been enacted to provide protection to women against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment.
Objectives of the Law
Sexual harassment is considered as a violation of the fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India (“Constitution”) and her right to life and to live with dignity as per Article 21 of the Constitution. It is also considered as a violation of a right to practice or to carry out any occupation, trade or business under Article 19(1) (g) of the Constitution, which includes a right to a safe environment free from harassment.
The Act defines sexual harassment at the workplace and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
The definition of ―aggrieved woman’’, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
While the ― ‘‘workplace’’in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act covers a large number of sectors both public and private, organized and unorganized sectors.
The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
The Complaints Committees have the powers of civil courts for gathering evidence.
The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.
Obligations of the Employer
The New Law casts certain obligations upon the employer. They are:
Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.
Treat sexual harassment as misconduct under the service rules and initiate action for misconduct.
Inform all employees of the penal consequences of indulging in acts that may constitute sexual harassment. Penal action shall include termination and reporting the harassment incident to relevant government authorities, and Constitute an Internal Complaints Committee (“ICC”). The ICC should be headed by a woman, and half its members shall be women & include a third-party representative from an NGO or any other agency conversant in dealing with sexual harassment.
Organise workshops and awareness programmes at regular intervals for sensitising employees and organizing orientation programmes for members of the Internal Complaints Committee to monitor the timely submission of reports by the ICC.
If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000. A repetition of the same offence could result in the punishment being doubled and/or de-registration of the entity or revocation of any statutory business licenses.
Interim measures include (i) transfer of the aggrieved woman or the respondent to any other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement.
Amendments to the Indian Penal Code, 1860
A new Section, Section 354A was added to the Indian Penal Code, 1860 through the Criminal Law (Amendment) Act, 2013, which enlists the acts which constitute the offence of sexual harassment and further envisages penalty/punishment.
ROLE OF JUDICIARY (IN INDIA):
Some noteworthy judicial pronouncements on this issue are:
Rupan Deol Bajaj & Anr vs. Kanwar Pal Singh Gill & Anr: Rupan Deol Bajaj, an IAS officer in Chandigarh, filed a case against the then Director General of Police, Punjab, K. P. S. Gill and stated that he had molested her modesty by “patting” her “posterior” in an intoxicated state, during a party at the residence of the then Punjab Financial Commissioner (Home), S. L. Kapoor. She was at that time working as an I.A.S. officer. In this case, KPS Gill was finally held guilty of the charges. The [High court of Punjab and Haryana, Chandigarh] upheld Gill’s conviction under Section 354 (outraging the modesty of a woman) and Section 509 (word, gesture or act intended to insult a lady) for his action against Deol.
Vishaka & others v. State of Rajasthan & others: In this case, Supreme Court laid down a set of guidelines which recognized it not only as a private injury to an individual woman but also as the violation of her fundamental rights. These guidelines are not limited only to government employers and should also be followed by employers in private sectors.
Tarun Tejpal Case: Tarun Tejpal, an Indian journalist and former editor-in-chief of Tehelka magazine, was accused of sexually assaulting a female colleague in his office. Police filed a First Information Report (FIR) which lists charges, including rape, against him. A non-bailable warrant was issued against him by the Goa Police. He was arrested by Goa police in 2013 and the matter is still under trial.
In most sexual harassment in the workplace cases, the victims are angry, annoyed, and embarrassed by the unwanted sexual attention. Some common effects of sexual harassment are ill health, depression, insomnia, loss of confidence, decreased work performance, increased absenteeism, the breakdown of relationships, loss of job and income, being objectified and humiliated etc. The Act is important because such legislation will have a positive effect in stamping out sexual advancement in the workplace and eventually will create a more safe and healthy working environment.