In a landmark decision, the Parliament passed the Sexual Harassment of Women at the Workplace Bill, giving more women the security of a law to address this issue which is often hidden and forgotten in India.
On February 26, 2013 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill was passed by the Rajya Sabhawith Women and Child Development Minister Krishna Tirath whereas Lok Sabha has passed it in September 2012.
Sexual Harassment at workplace is a violation of women’s right to gender equality, life and liberty. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their economic empowerment and the goal of inclusive growth. However, there is no domestic law to address this issue except a few provisions of the Indian Penal Code and the Supreme Court Guidelines in the case of Vishaka vs. State of Rajasthan. The increasing work participation rate of women has made it imperative that a comprehensive legislation focusing on prevention of sexual harassment as well as providing a redressal mechanism be enacted.
The Bill is a much-awaited one, especially since the Vishaka judgement was passed fifteen years ago. The case which was filed by an NGO at a time when several instances of sexual harassment at the workplace were happening but went unreported and unpunished as the criminal law did not recognise this as an offence at all. What the Vishaka judgement did was include several more sections of the society like the trade unions, workers, students and change the view of sexual harassment as a much larger and fluid concept than just rape.
The salient features of the Act are as follows:
(i) It defines “sexual harassment at the workplace” in a comprehensive manner, in keeping with the definition laid down in the Vishaka judgment, and broadening it further to cover circumstances of implied or explicit promise or threat to a woman’s employment prospects or creation of hostile work environment or humiliating treatment, which can affect her health or safety.
(ii) 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.
(iii) 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 goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation.
(iv) Definition of employee covers regular/temporary/ad hoc/daily wage employees, whether for remuneration or not and can also include volunteers. The definition of employer includes the head of the Government department/organisation/institution/office/branch/unit, the person responsible for management/supervisions/control of the workplace, the person discharging contractual obligations with respect to his/her employees and in relation to a domestic worker the person who benefits from that employment.
(v) The redressal mechanism provided in the Act is in the form of Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All workplaces employing 10 or more than 10 workers are mandated under the Act to constitute an ICC. The ICC will be a 4 member committee under the Chairpersonship of a senior woman employee and will include 2 members from amongst the employees preferably committed to the cause of women or has experience in social work/legal knowledge and includes a third party member (NGO etc.) as well.
(vi) Complaints from workplaces employing less than 10 workers or when the complaint is against the employer will be looked into by the LCC. A District Officer notified under the Act will constitute the LCC at the district level. LCC will also look into complaints from domestic workers.
(vii) LCC will be a five member committee comprising of a chairperson to be nominated from amongst eminent women in the field of social work or committed to the cause of women, one member from amongst women working in block/taluka/tehsil/municipality in the district, two members of whom at least one shall be a woman to be nominated from NGOs committed to the cause of women or a person familiar with the issues related to sexual harassment provided that at least one of the nominees should preferably have a background in law or legal knowledge. The concerned officer dealing with the social welfare or women and child development shall be an ex officio member.
(viii) A complaint of sexual harassment can be filed within a time limit of 3 months. This may be extended to another 3 months if the woman can prove that grave circumstances prevented her from doing the same.
(ix) The Act has a provision for conciliation. The ICC/LCC can take steps to settle the matter between the aggrieved woman and the respondent, however this option will be used only at the request of the woman. The Act also provides that monetary settlement shall not be made a basis of conciliation. Further, if any of the conditions of the settlement is not complied with by the respondent, the complainant can go back to the Committee who will proceed to make an inquiry.
(x) 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.
(xi) In case the complaint has been found proved, then the Committee can recommend action in accordance with the provision of service rules applicable to the respondent or as per the rules which will be prescribed, where such service rules do not exist. The committee can also recommend deduction of an appropriate sum from the salary of the respondent or ask respondent to pay the sum. In case the respondent fails to pay such sum, district officer may be asked to recover such sum as an arrear of land revenue.
(xii) In case the allegation against the respondent has not been proved then the Committee can write to the employer/district officer that no action needs to be taken in the matter.
(xiii) In case of malicious or false complaint then the Act provides for a penalty according to the Service Rules. However, this clause has a safeguard in the form of an enquiry prior to establishing the malicious intent. Also, mere inability to prove the case will not attract penalty under this provision.
(xiv) The Act has provisions for providing reliefs to the aggrieved woman in the interim period including leave and transfer during the pendency of the inquiry.
(xv) The Act prohibits disclosure of the identity and addresses of the aggrieved woman, respondent and witnesses. However, information regarding the justice secured to any victim of sexual harassment under this Act without disclosing the identity can be disseminated.
(xvi) The Act casts a responsibility on every employer to create an environment which is free from sexual harassment. Employers are required to organize workshops and awareness programmes at regular intervals for sensitizing the employees about the provision of this legislation and display notices regarding the constitution of Internal Committee, penal consequences of sexual harassment etc.
(xvii) An employer will be liable to a fine of Rs 50,000 in case of violation of his duties under the Act and in case of subsequent violations the amount of fine will be double together with penalty in the form of cancelation of his license, withdrawal or non-withdrawal of the registration required for carrying out his activity.
(xviii) In case of domestic worker the procedure is different considering the nature of employment. A domestic worker can approach the LCC in case of any complaint. If the complainant wishes then conciliation may be carried out. However, in other cases if the complaint is proved prima facie then the LCC can forward the complaint to the police for registering the case and taking appropriate action under the relevant provision of IPC.
(xix) Regarding monitoring, the Act provides that the State Governments will monitor implementation and maintain data for all State Government establishments as well as private establishments in their territory. For establishments of the Central Government this duty is cast on the Government of India. All ICCs have to submit Annual reports to the employer who in turn will submit it to the district officer. All LCCs shall submit their annual report to the district officer. The district officers will submit the report annually to the State Governments.
(xx) The Central and State Governments are mandated to develop relevant IEC and training materials and organize awareness programmes to advance the understanding of the public on the provisions of this Bill.
(xxi) The Central Government will provide financial assistance to the States to meet the expenditure of fee and allowances payable to the members of the Local Complaints Committee.
The Bill is a welcome move, especially with the recent events in the state capital of Delhi, where the issue of safety and rights of women came into the spotlight again. A Bill like this, not only helps women in gaining back their rights but also giving them the security of redressal and the backing of a law to protect them.