By Himansi Gupta (Associate) & Ayush Patria (Associate)
INTRODUCTION
Have you faced sexual harassment at work? Has a male colleague persisted even after you disapproved of his sexual behavior or advances? This is considered as sexual harassment at the workplace, which is a violation of women’s right to equality, life, and liberty.
It creates an insecure and hostile work environment, which discourages women from participating in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth. With this idea, the legislature formulated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which applies to the whole of India.
The need for such legislation was observed for the first time by the Supreme Court, in the matter of Vishaka vs. State of Rajasthan, wherein, Bhanwari Devi, a woman from Rajasthan started working under the Women’s Development Project (WDP) run by the Government of Rajasthan. In the year 1992, Bhanwari Devi took up an issue based on the government’s campaign against child marriage. This campaign was subjected to disapproval and ignorance by all the members of the village, even though they were aware of the fact that child marriage is illegal. Bhanwari Devi tried to persuade the families to not go ahead with the child marriage, but they paid no heed to her and went ahead with the marriage. However, the police stopped the marriage but it was performed the next day, and as revenge, five family members ganged-raped Devi. When Bhanwari Devi failed to get justice for herself, a PIL was filed by a women’s rights group.
In the absence of any law at that time providing measures to check the evil of sexual harassment of working women, the Hon’ble Supreme Court, in the exercise of power available under Article 32 of the Constitution, framed guidelines known as Vishakha Guidelines which were to be followed at all workplaces or institutions, until a legislation is enacted for the purpose. The Hon’ble Supreme Court incorporated basic principles of human rights enshrined in the Constitution of India under i.e., Articles 14, 15, 19(1)(g) and 21, and provisions of the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) which was ratified in 1993 by the Government of India. The guidelines laid down by the Hon’ble Supreme Court were to be treated as the law declared under Article 141 of the Constitution.
After sixteen years of the Vishaka Case, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“the Act”) was enacted with the objective of protecting women against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment and matter connected therewith or incidental thereto.
CONCEPT OF SEXUAL HARASSMENT
The Act defines sexual harassment as “an unwelcome act or behavior (whether directly or by implication) namely, physical contact and advances, a demand or request for sexual favors, making sexually colored remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of sexual nature.” Any act of an unwelcome and sexual nature shall be considered as sexual harassment. The Delhi High Court in the case of Shanta Kumar vs. Council of Scientific & Industrial Research held that undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behavior, a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment.
The Act also provides the situations under which an act may amount to sexual harassment. These are:
(1) The implied or explicit promise of preferential treatment in her employment; or
(2) The implied or explicit threat of detrimental treatment in her employment; or
(3) The implied or explicit threat about her present or future employment status; or
(4) The interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(5) The humiliating treatment which is likely to affect her health or safety.
DUTIES OF EMPLOYER
(1) To provide a safe environment to the employees working at their organizations which shall incorporate safety from the persons coming into contact at the workplace.
(2) Constitution of an Internal Complaints Committee in all offices/branches of the organization to which the act applies. The Organizations must constitute an ‘Internal Complaints Committee’ (ICC) at each office or branch that employs at least 10 employees. The law requires all organizations having 10 or more employees, even if they do not have women employees to constitute an ICC. The main purpose behind this compliance is that the law allows even third parties like contractors, customers, and anyone who is visiting the premises of an organization to file a complaint of sexual harassment that took place in the workplace.
(3) Display the penal consequences of sexual harassment and the order constituting the ICC at any conspicuous place in the organization.
(4) Drafting of an Anti-sexual harassment policy aligned with the provisions of the new law such as definition clauses, procedural mechanisms, and interim remedies. Mere copy-pasting the provisions without giving much thought about the ramifications of the text in the context of the operating sector of the business or cross-checking if they actually meet all the required standards under the Act might be counter-effective and will not be able to meet the purpose. For example, the new law in India considers transportation provided by the office to be part of the workplace and any incident of sexual harassment that happened in such transportation will be treated in the same manner as if it happened in the office premises.
(5) Make changes to the employment contracts to make the employees legally bound for the acts of sexual harassment done by them in the workplace. Organizations should insert a specific clause in the employment agreement for all new hires stating that sexual harassment will be considered as misconduct. In the case of existing employees, the organization can ask the employees to sign the amended service rules and share a copy of the sexual harassment policy, and submit the same to Human Resources.
(6) Organize workshops and awareness programmes periodically for –
a) sensitizing employees on the implications of sexual harassment at the workplace; and
b) organizing orientation programmes for members of the Internal Complaints Committee.
(7) Preparation of Annual Reports by the ICC or the Local Complaints Committee (LCC) and monitoring the submission of said reports by the ICC, which are to the submitted to the specified authorities.
(8) Assist employees in initiating legal action against the perpetrator for sexual harassment (if the perpetrator is not an employee) under criminal law. There can be many situations where it can be said that sexual harassment has occurred at the ‘workplace’, but where the person involved in the harassment is not under the control of the employer – thus, the employer has extremely limited ability to assist the woman through the ICC mechanism. But that does not absolve the liability of the organizations, in such cases, if the woman requests, the employer is obligated under the law to provide adequate assistance to her in approaching the police and filing an FIR.
(9) Providing necessary facilities to the complaints committee for dealing with sexual harassment instances. Provision of a venue where ICC proceedings can be carried out in a confidential manner, provide necessary logistical support in terms of furniture and stationery, and ensure that the committee members (if they operate from the employer’s premises) have access to secure communication (internet, phone connections, postal services) so that inquiry and hearings can be smoothly carried out. Providing access to company policies and manuals, any basic legal literature which is possessed by the employer, etc.
(10) Employer shall maintain confidentiality throughout the inquiry process and no information regarding the contents of the complaint, identity, and address of the aggrieved woman, witnesses, and the respondent, any information in regards to conciliation or inquiry process, recommendations made by the committee or the actions taken by the employer or the district officer shall be published, communicated or disclosed to the public, press or media in any manner. Where a person entrusted with the duty to handle or deal with the complaint or inquiry or any recommendation, fails to comply with confidentiality, will attract a penalty of INR 5,000.
(11) The employer must assist the ICC in securing the attendance of the person alleged to be the perpetrator and any witnesses before the ICC or the LCC – For instance, he could arrange for transportation in appropriate cases. Providing necessary facilities to the complaints committee for dealing with sexual harassment instances.
RIGHT OF WOMEN AGAINST SEXUAL HARASSMENT AT WORKPLACE
Every person, irrespective of their gender, caste and colour have the right to an equal and dignified life as well as personal liberty. The ambit of the term “any person” also inevitably includes “women”. The Prevention of Sexual Harassment of Women at Workplace Act, 2013 provides explicit rights to women to provide them with an equal opportunity to work in a dignified manner. Thus, it entitles an aggrieved woman to file a written complaint to ICC/ LCC within three months from the date of the incident and in case of series of such incidents, within three months from the date of last such incident. However, any delay in filing the complaint can be condoned by the committee further up to three months, if the committee is satisfied with the reason provided for the said delay.
In case of physical or mental incapability of the aggrieved woman, her legal heirs or such other person as described in Rule 6 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“the Rules “) have the right make the complaint.
AUTHORITIES TO BE APPROACHED BY THE AGGRIEVED WOMAN
If the aggrieved woman feels comfortable in approaching the perpetrator themselves, they could directly tell the perpetrator that she finds his behavior to be unwelcome or inappropriate and ask him not to repeat it, as certain times, the remarks/actions are not done with any sexual intent behind them. Otherwise, the Aggrieved Woman can approach the Internal Complaints Committee established within the organization under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) with a written complaint.
In cases where the organization does not have ICC, or if the complaint is against the employer himself, or if the aggrieved woman works in the capacity of domestic help, then they can lodge their complaint with the LCC established in their respective district under the Act.
INTERNAL COMPLAINTS COMMITTEE
As per Section 4 of the Act of 2013, Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the Internal Complaints Committee(ICC).
An ICC is a body that is constituted within an organization to address and resolve complaints of sexual harassment in the workplace. The ICC is responsible for receiving, and inquiring about it. As well as resolving complaints of sexual harassment made by employees of the organization. It is an in-house mechanism for dealing with complaints of sexual harassment, which is intended to provide a safe and secure environment for employees.
The POSH Act envisages that an ICC constituted by an employer should comprise three categories of members, with certain eligibility criteria as follows:
(a) Presiding Officer – The chairperson of an ICC, referred to by the nomenclature Presiding Officer, shall be a senior level female employee of the organization.
(b) External Member – The ICC should include an external member being a person familiar with issues relating to sexual harassment, or from an NGO or association committed to the cause of women.
(c) Employee Members (Two or More) – The ICC should also include two or more members from its employees, preferably individuals having legal knowledge, experience in social work, or committed to the cause of women.
Accordingly, the POSH Act and POSH Rules impose a duty on the employer to organize orientation programmes and training workshops at regular intervals to supplement gaps in the knowledge of members of the ICC and to ensure that they are better placed to duly discharge their duties.
Besides the above criteria specific to each category of members, the POSH Act additionally requires that at least half of the ICC should comprise female members. As envisaged by the POSH Act, the ICC constitutes a minimum of four members (namely the Presiding Officer, the external member and a minimum of two employee members). However, as a practical measure, it is recommended to have three or an odd number of employee members to avoid a scenario where, at the end of the inquiry, the committee is evenly divided in its findings on the merits of the charges presented before it.
How to make a Complaint to the ICC?
A complaint to the ICC should be made within a period of three months from the date of the incident. However, the time-period can be extended in case the ICC is satisfied that the circumstances of the complainant were such that the complaint could not have been made within that period of time.
The complaint should be made in writing, and for this, the complainant can take assistance from the ICC. The contents of the applications/ complaints including the identity, address of the aggrieved woman, respondent, and witnesses are protected from the public view (through the RTI Act). Even the information related to the proceedings of the ICC are protected from the public purview.
How does the ICC proceed with the sexual harassment complaint?
Once the complaint is received by the ICC, it gives an option to the complainant/ victim to either undertake conciliation for resolving of the complaint or proceed with the investigation by the ICC. The ICC is required to give the victim in question, the entire details or pros and cons of the investigation versus conciliation and she is required to make a choice.
- Conciliation – In case the complainant chooses the process of conciliation, she would be able to discuss and thereby resolve the issue with the accused. The process is facilitated in the presence of the ICC. This ensures that the procedure is neutral and safe for both parties. If the process of conciliation is a success, the decision/ terms are recorded for future action. After this, no inquiry is initiated. However, if the conciliation fails, the inquiry is taken up by ICC.
- Inquiry – The ICC conducts the investigation in an unbiased manner, after the evidence is acquired by both parties. The investigation by ICC should be completed within 90 working days. During the investigation, both parties are given an equal opportunity of being heard. Once the inquiry is completed by the ICC, a formal report is to be sent to the employer. The report shall consist of recommendations and the action to be taken as well. The employer has to take action against the accused (if found guilty by the ICC) on an immediate basis and in any case, within three months.
The POSH laws allow some relief to the aggrieved woman even during the pendency of inquiry. This is done in order to make the workplace less uncomfortable. The following actions as relief can be allowed to the complainant by the ICC:
- Transfer – The aggrieved woman or the accused/ respondent can be transferred to any other workplace, or
- Leave – The aggrieved woman can be granted leave up to a period of 3 months, which would be in addition to the leave she is otherwise entitled to.
LOCAL COMPLAINTS COMMITTEE
The State Government will notify the person designated as District Magistrate or Additional District Magistrate or Collector or Deputy Collector as the District Officer in every district, who will constitute a Local Complaints Committee (LCC) so as to enable women in the unorganized sector or small establishments (organizations having less than ten employees) to work in a safe environment that is free of sexual harassment. The LCC will have the following members:
- Chairperson – To be nominated from amongst the eminent women in the field of social work and committed to the cause of women.
- One Member – To be nominated from amongst the women working in the block, taluka, tehsil, ward, or municipality in that district
- Two Members – To be nominated from amongst such NGOs or Associations or Individuals committed to the cause of women or familiar with the issues relating to sexual harassment, provided that:
At least one nominee must be a woman and at least one must have a background in law or legal knowledge.
The concerned officer dealing with social welfare or women and child development in the district shall be an Ex-Officio Member.
How to Establish ICC within the Organization?
As per the Act, the employer is obligated to display at any conspicuous place in the workplace the names and contact information of the members of the committee. However, if this is not done, then one can contact the Employer, the Head of the Department, the Human Resource Department, or any other person so designated for this work to obtain information about the ICC constituted under the Act.
How to Establish LCC in a District?
The District Officer under the act is required to designate a Nodal Officer to receive the complaints and forward the same within seven days to the LCC.
To locate the Nodal Officer or LCC or one of its members, one can adopt the following measures:
Contact the District Officer’s office, contact one-stop center, or the Women Helpline (toll-free through 181, 100, etc.) functioning in that district, or the government officials of the Tehsil or Taluka Office established in the district, or the State Commission for Women, the State Department of Women and Child Development, the other Departments looking after women issues, etc.
MANNER OF INQUIRY
(1) The aggrieved woman or their legal heir, friend or relative, co-worker, special educator, etc. as the case may be can file a complaint in writing with ICC/ LCC within three months which can be extended up to six months if the committee is satisfied with the cause of such delay.
(2) The complainant shall submit six copies of the complaint to the committee along with the supporting documents consisting of the description of each incident(s), date, time, and location of the incident(s), name of the respondent, working relationship between the concerned parties, the name and address of the witnesses.
(3) The Committee on receipt of the complaint, shall send one copy of such complaint to the respondent within seven working days.
(4) The respondent shall file his reply to the said complaint along with his list of supporting documents and the name and address of the witness within ten working days from the date of receipt of the complaint.
(5) The committee at the request of the aggrieved woman may try to settle the matter through conciliation between the concerned parties, but no monetary settlement can be done based on the conciliation.
(6) The inquiry shall be made by the committee in accordance with the principles of natural justice, and the committee will exercise powers similar to that of the Civil Court under the Code of Civil Procedure.
(7) The inquiry shall be completed within ninety days. Also, the committee can terminate the inquiry proceedings or can give an ex-parte decision if the complainant or the respondent without any sufficient cause fails to present themselves for three consecutive hearings held.
(8) Provided that such termination or ex-parte order shall be passed only after giving a fifteen-day advanced notice in writing to the concerned party.
(9) The concerned parties cannot bring legal practitioners to represent themselves before the committee.
(10) The committee shall at every time maintain a quorum of at least three members including the chairperson during the conducting of the inquiry.
(11) The committee shall within ten days of completion of the inquiry, submit the Inquiry Report of its findings to the employer or the district officer, who in return shall take necessary action accordingly within a period of sixty days.
(12) Any person aggrieved with the recommendations made or from non-implementation of the recommendations made, can prefer an Appeal within ninety days of such recommendations to the Appellate Authority notified under clause (a) of section 2 of the Industrial Employment (Standing Orders) Act, 1946.
PUNISHMENTS TO THE ACCUSED, IF THE ALLEGATIONS ARE PROVED
If the accused is found to have indulged in the act of sexual harassment, he can be given the following punishments:
- Disciplinary Actions – Punishments like written apology, warning, reprimand, censure, not allowing promotions/ increments, etc. are given. Stricter punishments such as termination of employment can also be awarded to the offender. He can also be asked to undergo counselling and carry out community services.
- Compensation – The compensation that the aggrieved woman would be entitled to receive, could be paid out of the wages of the respondent.
- Punishment, prescribed under the service rules of the organization.
Moreover, as per Section 13 of the Act, Inquiry Report has to be sent to the District Officer (The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act).
- On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
- Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
- Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be –
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs.
(In case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment, it may direct to the respondent to pay such sum to the aggrieved woman.
In case, the respondent fails to pay the sum, the ICC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.)
The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him
PUNISHMENT PROVIDED TO THE EMPLOYER
When the employer fails to constitute the Internal Complaints Committee or fails to take any action or contravenes or attempts to contravene or abet contravention of provisions of this Act or the Rules made, he shall be punishable with a fine up to INR 50,000, and for the subsequent offenses, the employer will be liable for punishment which would be twice the first imposed punishment provided for the same offense or cancellation of his license, withdrawal or non-renewal or approval or cancellation of the registration by the Government or local authority required to carry on the business or activity.
CONCLUSION
Even though the Act came into force in the year 2013, the awareness regarding sexual harassment, its consequences, and the redressal mechanism available to the aggrieved is limited. The effective implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, not only requires creating an environment where women can speak up about their grievances without fear and get justice but also sensitization of men regarding their treatment towards women at workplace to not make them uncomfortable or to not make them feel unsafe is equally necessary.
REFERENCES
(1) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2498990
(3) https://indianbarassociation.org/wp-content/uploads/2016/08/what-is-POSH.pdf
Abott Law Office 