LAW REFORMS IN SEXSUAL HARASHMENT OF WOMEN AT WORKPLACE BY - VAISHNAVI SHIRGUPPI
LAW
REFORMS IN SEXSUAL HARASHMENT OF WOMEN AT WORKPLACE
SUBMITTED BY - VAISHNAVI SHIRGUPPI (LL.M
II)
SAVITRBAI PHULE PUNE UNIVERSITY
P.E.S MODERN LAW COLLEGE,
GANESH KHIND, PUNE
Abstract
An uncontested upsurge vis-a-vis
sexual harassment at workplace in India has enthralled unexampled mindfulness
to the menace like never before. Long outmoded are the days when women used to
be confined in the four walls of the houses and only men used to be the
breadwinner of the family. Globalization has brought about a paradigm shift in
the status of women worldwide by recognizing the role of women in the
mainstream workforce.
However, with the proliferation of women entering workforce, the menace of sexual harassment at workplace has assumed radical dimensions. While a murder destroys the physical frame of the victim, sexual harassment degrades and defiles the soul of a helpless woman. Thus, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was enacted with the objective of protecting women in India from sexual harassment anent their workplaces.
However, with the proliferation of women entering workforce, the menace of sexual harassment at workplace has assumed radical dimensions. While a murder destroys the physical frame of the victim, sexual harassment degrades and defiles the soul of a helpless woman. Thus, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was enacted with the objective of protecting women in India from sexual harassment anent their workplaces.
Keywords: Sexual Harassment, Workplace, Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Women,
POSH Act, Workforce, Victim
A)
INTRODUCTION:
Workplace sexual
harassment is a form of gender discrimination which violates a woman’s
fundamental right to equality and right to life, guaranteed under Articles 14,
15 and 21 of the Constitution of India (“Constitution”). Workplace sexual harassment
not only creates an insecure and hostile working environment for women but also
impedes their ability to deliver in today’s competing world. Apart from
interfering with their performance at work, it also adversely affects their
social and economic growth1 and puts them through physical and emotional
suffering.
India’s first legislation
specifically addressing the issue of workplace sexual harassment; the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 (“POSH Act”) was enacted by the Ministry of Women and Child Development,
India in 2013. The Government also subsequently notified the rules under the
POSH Act titled the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Rules, 2013 (“POSH Rules”). The year 2013 also
witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 (“Criminal
Law Amendment Act”) which has criminalized offences such as sexual harassment,
stalking, etc.
Although the law
preventing sexual harassment at workplace has been in force since 2013, there
remains lack of clarity on various aspects pertaining to the statute, including
what constitutes sexual harassment, obligations of an employer, remedies/
safeguards available to the victim, procedure of investigation, etc. Many are
also not fully aware of the criminal consequences of sexual harassment. Lewd
jokes, inappropriate comments etc. are dismissed as normal, with women being
hesitant to initiate actions due to apprehension of being disbelieved or ridiculed;
which underpins the need for greater awareness and greater enforcement. Any
tool would be useless if the person operating it is unaware of the way it is to
be used. Therefore, the objective of is to serve as a ready reckoner to all the
stakeholders and re-educate them on the law relating to workplace sexual
harassment.
B)SCOPE:
• The PoSH Act has been implemented to
prevent and protect women from sexual harassment at the workplace and thereby
ensure a safe working environment for women.
• The PoSH Act, as mandatary
compliance, requires every company having more than ten employees to constitute
an Internal Complaints Committee (ICC) in the prescribed manner to receive and
address the complaints of any sort of sexual harassment from women in a time-bound
and extremely confidential manner.
C)
PURPOSE:
The POSH Act aspects is
of equality of women in the workplace, gender-specific violence, and
unwelcome sexually colored behaviour and adopted them to come out with a
strong legislature.
D)
WHAT AMOUNTS TO SEXUAL HARASSMENT?
The POSH Act defines
‘sexual harassment’ in line with the Supreme Court’s definition of ‘sexual
harassment’ in the Vishaka Judgment. As per the POSH Act, ‘sexual harassment’
includes unwelcome sexually tinted behaviour, whether directly or by
implication, such as (i) physical contact and advances, (ii) demand or request
for sexual favours, (iii) making sexually coloured remarks, (iv) showing
pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct
of a sexual nature.10 The following circumstances, among other circumstances,
if they occur or are present in relation to or connected with any act or
behaviour of sexual harassment may amount to sexual harassment: § implied or
explicit promise of preferential treatment in employment; implied or explicit threat of detrimental
treatment in employment; implied or
explicit threat about present or future employment status; § interference with
work or creating an intimidating or offensive or hostile work environment; or
humiliating treatment likely to affect the lady employee’s health or safety. As
you would note from above, the definition of ‘sexual harassment’ under the POSH
Act is wide enough to cover both direct or implied sexual conduct which may
involve physical, verbal or even written conduct. The key distinguishing
feature is that the conduct is unwanted and unwelcome by the recipient. It
includes quid pro quo sexual harassment, a form of sexual blackmail (which if
translated in English, would mean ‘this for that’). In a typical situation of
quid pro quo harassment, the respondent being a person in power, pressurizes
the woman employee (usually a subordinate) for sexual favours in exchange for
advancement in the workplace or threat of adverse employment action. The definition
also includes reference to creating an ‘intimidate, offensive or hostile
working environment’. An example would be a work environment where an
individual is subject to unwelcome comments about her body type resulting in
the woman employee feeling embarrassed and unable to work properly. While some
forms of sexual harassment such as sexual assault are inherently offensive and
egregious, and may need to occur only once for it to be treated as ‘sexual
harassment’, some other forms may not be easily distinguishable. Since there is
no fine line test in determining what would amount to a ‘hostile working
environment’, the burden will lie on the internal committee to decide whether
the harassment suffered by a victim is sufficiently severe to have created a hostile
working environment or not. Further, determining what constitutes ‘sexual
harassment’ depends upon the specific facts and the context in which the
conduct has occurred.
E)INTERNATIONAL PERSPECTIVE
General Assembly Resolution 48/104 on the Declaration on the Elimination of
Violence Against Women defines violence against women to include sexual
harassment, which is prohibited at work, in educational institutions, and
elsewhere (Art. 2(b)), and encourages development of penal, civil or other
administrative sanctions, as well as preventative approaches to eliminate
violence against women (Art. 4(d-f)). The Convention on the Elimination of all Forms of Discrimination against
Women (CEDAW) directs States
Parties to take appropriate measures to eliminate discrimination against women
in all fields, specifically including equality under law, in governance and
politics, the workplace, education, healthcare, and in other areas of public
and social life. (Arts. 7-16). Moreover, the Beijing Platform for Action, para. 178, recognizes sexual harassment as a form
of violence against women and as a form of discrimination, and calls on
multiple actors including government, employers, unions, and civil society to
ensure that governments enact and enforce laws on sexual harassment and that
employers develop anti-harassment policies and prevention strategies
International Labour Organisation
The ILO
Committee of Experts on the Application of Conventions and Recommendations has
confirmed that sexual harassment is a form of sex discrimination covered by
the Discrimination (Employment and Occupation) Convention (No. 111) of 1958. The ILO’s Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual harassment
in the workplace.
F) SEXUAL HARASSMENT EVALUATION IN INDIA
The elimination of
gender-based discrimination has been one of the fundamentals of the
Constitutional edifice of India. The principle of gender equality is enshrined
in the Constitution, in its Preamble, fundamental rights, fundamental duties
and Directive Principles. However, workplace sexual harassment in India, was
for the very first time recognized by the Supreme Court of India (“Supreme
Court”) in its landmark judgment of Vishaka v. State of Rajasthan2 (“Vishaka
Judgment”), wherein the Supreme Court framed certain guidelines and issued
directions to the Union of India to enact an appropriate law for combating
workplace sexual harassment.
Nothing less of an irony,
the POSH Act and the POSH Rules was enacted 16 years after the Vishaka
Judgement. In the absence of a specific law in India, the Supreme Court, in the
Vishaka Judgment, laid down certain guidelines making it mandatory for every
employer to provide a mechanism to redress grievances pertaining to workplace
sexual harassment (“Vishaka Guidelines”) which were being followed by employers
until the enactment of the POSH Act.
Vishaka vs State of
Rajasthan (1997)
• Vishaka Judgment is a historical case
that deals with the offence of Sexual Harassment of women at her workplace.
This supreme court judgment defined the ambit of Sexual
Harassment as including an uninvited or unwelcome sexual favour or sexual
gestures from one gender towards the other gender.
• working women in India, lawyers
and women’s rights activists filed public interest litigation (PIL) in the
Supreme Court under the banner of Vishaka. The Supreme Court, considering such
grave concern, acknowledged the serious legislative shortcoming and
acknowledged workplace sexual harassment as a human rights violation under the
Constitution of India.
• “Vishaka Guidelines” were
stipulated by the Supreme Court of India, in Vishaka and others v State of
Rajasthan case in 1997, regarding sexual harassment at the workplace. The
court stated that these guidelines were to be implemented until legislation is
passed to deal with the issue.
• After the Supreme Court judgment in
the case of Vishaka & vs State of Rajasthan (1997), the Ministry of Women
and Child Development, after several years, passed the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH
Act).
Provisions of the POSH
Act
• The Act defines sexual harassment at
the workplace and creates a mechanism for redressal of complaints and
safeguards against false or malicious charges.
• Every employer is required to
constitute an Internal Complaints Committee(ICC) at each office or branch with
10 or more employees.
• The Complaints Committees have the
powers of civil courts and are required to provide for conciliation before
initiating an inquiry if requested by the complainant.
• Penalties have been prescribed for
employers for non-compliance with the provisions of the Act.
• The State Government will notify the
District Officer in every district, who will constitute a Local Complaints
Committee (LCC) to enable women in the unorganized sector or small
establishments to work in an environment free of sexual harassment
Constituting an ICC sends
a powerful message that the company is completely committed to working towards
women’s safety. Nonetheless, it is important to note that constituting an ICC
is a mandatory requirement under the PoSH Act and not abiding by the same can
attract heavy fines including cancellation of license to conduct business
operations.
Employer’s Duties
and Obligations
To requiring an employer
to set up an IC and ensure redressal of grievances of workplace harassment in a
time bound manner, the POSH Act casts certain other obligations upon an
employer which includes:
a. Promoting a gender sensitive workplace and
removing the underlying factors that contribute towards creating a hostile
working environment against women;
b. provide a safe working
environment;
c. formulate and widely disseminate an
internal policy or charter or resolution or declaration for prohibition,
prevention and redressal of sexual harassment at the workplace;
d. display conspicuously
at the workplace, the penal consequences of indulging in acts that may
constitute sexual harassment and the composition of the IC;
e. declare the names and
contact details of all members of the IC;
f. organize workshops and
awareness programmes at regular intervals for sensitizing employees on the
issues and implications of workplace sexual harassment and organizing
orientation programmes for members of the IC;
g. provide necessary
facilities to the IC for dealing with the complaint and conducting an inquiry;
h. cause to initiate
action, under the Indian Penal Code, 1860 (“IPC”) or any other law in force,
against the perpetrator, or if the aggrieved woman so desires, where the
perpetrator is not an employee, in the workplace at which the incident of
sexual harassment took place;
i. provide assistance to
the aggrieved woman if she so chooses to file a complaint in relation to the
offence under the IPC or any other law for the time being in force;
j. treat sexual
harassment as a misconduct under the service rules and initiate action for
misconduct;
k. prepare an annual
report with details on the number of cases filed and their disposal and submit
the same to the District Officer;
l. monitor the timely submission
of reports by the IC.
G)
MECHANISM ADMINISTRATED ON SEXUAL HARASSMENT AT WORKPLACE
1. J.S Verma Committee on sexual
harassment at workplace, 2012
The Justice JS Verma
committee was set up after the Nirbhaya incident of December 2012 and submitted
its recommendations on strengthening the laws to curb crimes against women.
Recommendations of the
panel were:
• The Committee had recommended setting
up of an employment tribunal instead of an internal complaints committee (ICC)
in the Sexual Harassment at the Workplace Act.
• The committee proposed that the
tribunal should not function as a civil court but may choose its procedure to
deal with each complaint to ensure faster disposal of cases.
• Internal complaints could be more
counterproductive as dealing with such complaints in-house could discourage
women from filing complaints.
• Domestic workers should be included
within the purview of the Act.
• The Committee has termed the Sexual
Harassment Act unsatisfactory and not reflecting the spirit of the Vishakha
guidelines framed by the Supreme Court in 1997 to curb sexual harassment at the
workplace.
• The Committee said any unwelcome
behaviour should be seen from the subjective perception of the complainant,
thus broadening the scope of the definition of sexual harassment.
• The panel said an employer should be
held liable if
1. he or she facilitated sexual
harassment
2. permitted an environment where sexual
misconduct becomes widespread and systematic
3. Where the employer fails to disclose
the company’s policy on sexual harassment and ways in which workers can file a
complaint
4. When the employer fails to forward a
complaint to the tribunal
5. The company would also be liable to
pay compensation to the complainant
• The panel opposed penalizing women
for false complaints as it can potentially nullify the objective of the law.
• The panel also said that the time
limit of three months to file a complaint should be done away with and a
complainant should not be transferred without her consent.
Sexual Harassment
Committee - Time for a Change
Ø Om Kumar v Union of India
Judgment reaffirms the
importance and powers of the ICC that is required to be formed under the Sexual
Harassment Act. Given the sensitivities surrounding sexual harassment
allegations, it is important that the ICC is trained to deal with such cases in
a fair, proper and dispassionate manner and based on the principles of natural
justice. It is also necessary for the ICC to ensure that it completes the
investigation and issues its order within the time frame set under the law.
The judgment also
clarifies the already enshrined principles of judicial restraint by the courts.
The interference of the courts should be limited to ensuring that there are no
procedural irregularities or violations of principles of natural justice. Once
the ICC has adequately and appropriately addressed a complaint of sexual
harassment, it is not open to the courts to look into the merits of the matter.
Internal Complaints Committee (ICC) -
Women
Constitution of ICC-SHW for considering complaints of
sexual harassment of women employees at DST
In compliance with the
instructions of National Commission for women and guidelines issued in
implementation of the directives of Hon'ble Supreme Court Judgement dated 13th
August, 1997 in the case of Visakha and others vs. State of Rajasthan and
Others on the subject of sexual harassment of women in the workplace, this
Department had duly constituted a Complaint Committee for considering
complaints of sexual harassment of women working in the Department of Science
and Technology. The composition of the Complaints Committee was revised
subsequent to transfer etc. of the existing Chairperson/Member. This Committee
in the Department has now been re-constituted on 12th July, 2017 for
considering complaints of sexual harassment of women employees.
2. Changes in Conduct of Inquiry
In Sibu v. Air India
Limited, ((2016) 2 KLJ 434) was held that the inquiry as per the POSH Act is
not a preliminary inquiry but instead a fullfledged enquiry, which needs to be
done in the same manner as is done to prove misconduct in disciplinary
proceedings. The court mandated the IC to follow principles of natural justice
and give fair opportunity to the respondent to defend himself. The Delhi High
Court pointed out in Gaurav Jain v. Hindustan Latex Family Planning Promotion
Trust and Ors. (2015 SCC OnLine Del 11026) that strict rules of evidence are
not required to be followed in inquiry proceedings and that the IC can adopt
its own procedure in conformity with the principles of natural justice and
especially in a case of sexual harassment. In another matter before Rajasthan
High Court (Shital Prasad Sharma v. State of Rajasthan and Ors. (2018 SCC
OnLine Raj 1676), it was observed that the POSH Act and the rules enable a
three-member team to conduct the inquiry so long as the Presiding Officer is
present. Therefore, the inquiry report does not stand vitiated unless it is
shown that there were less than 3 members who conducted the inquiry
• It is pertinent to note that the
courts are recognizing and upholding the powers to the IC as provided by law.
Accordingly, employers and their ICs need to ensure that the proceedings are
conducted in a fair manner and in compliance with the law and the principles of
natural justice.
• Sexual harassment allegations in the
workplace not only run the risk of loss of employer’s reputation but also lead
to legal troubles. Needless to mention, sexual harassment at workplace
continues to remain one of the most sensitive issues that needs to be dealt
with immense care and sensitively. As opined by the Bombay High Court,
employers need to genuinely be concerned with the safety of women at workplace
rather than staging a farce of compliance under the POSH Act.
• It is also important for employers to
regularly train their IC members on the nuances of the POSH Act and investigation
formalities. In order to keep litigation at bay, a comprehensive understanding
of the interpretation being adopted by courts in India and the ability to look
at things from the lens of the judiciary, is necessary.
• While employers have in general been
following the process of educating/training their IC members on the POSH Act,
as a next step, the IC members should be kept abreast of the latest judicial
interpretations, so as to avoid any potential mistakes which could end up
creating litigation and reputational risks for the employer.
3. SHE-BOX
The Ministry of Women and
Child Development has launched “SHe-Box”, an online platform for reporting
complaints of sexual harassment arising at the workplace. § The SHe-Box
facility can be used by both government and private sector employees. §
Complaints received on SHe-Box shall be directed by the government to the
employer’s ICC or LCC. § Progress of the investigation can be monitored by both
the complainant and the Ministry of Women and Child Development.
4. GRIEVANCE REDRESSAL UNDER THE
ANTIHARASSMENT LAW
As per the
Anti-Harassment Law, every employer employing at least 10 employees is required
to set up an ICC at each office or branch to investigate and redress sexual
harassment grievances. The government is also required to set up a LCC in every
district to deal with complaints of sexual harassment arising from the
unorganized sector or from establishments where the ICC has not been
constituted (on account of the establishment having less than 10 employees) or
if the complaint is against the employer. The law imposes a penalty of upto Rs.
50,000 (approx. USD 775) on employers who do not implement the provisions of
the Anti-Harassment Law including failure to constitute an ICC.
H)
Conclusion:
The POSH Act being a
relatively new labour law in India, these judgements analysing various
intricate aspects under the POSH Act helps provide better clarity not just for
the employer and the IC members, but also for the public at large. The
introduction of SHe-Box is a positive step of the Indian government in its
continuing efforts to provide a safe and fair working environment for women.
With this initiative, female employees now have another channel to raise
workplace sexual harassment complaints. Inspite of the enactment of the
Anti-Harassment Law in 2013, the WCD has been receiving sexual harassment
complaints.46 This indicates that either there are employers that may not have
a fully functional ICC or necessary awareness has not been created at the
workplace. It could even be possible that female employees do not have enough
confidence in their employer’s internal complaint mechanism or that the
investigation has been delayed. In the last couple of years, sexual harassment
issues have been widely covered in the Indian media. Given the litigational and
reputational risks associated with non-compliance of the Sexual Harassment Law,
it is high time that employers take affirmative steps in implementing
zero-tolerance policies towards sexual harassment at their workplaces and
ensure that the complaint is investigated swiftly, comprehensively and
confidentially
Bibliography:
1. Book - Dr. Durga Das
Basu Introduction to the Constitution of India- 20th edition Reprint 2012.
2. Book- Prof. M P JAIN
Indian Constitutional Law fifth edition reprint 2009.
3. Book- Prof. V. D.
Mahajan Jurisprudence and legal theory
1.
https://main.sci.gov.in/judgment/judis/1251.pdf.
3.
https://www.legalbites.in/.
4.
https://indiankanoon.org/
5. Book -Constitutional
Law-I Structure – Udai Raj Rai.
6. http://www.jstor.org/.
7.
http://www.legalservicesindia.com/article/1688/Right-To-Equality--
AFundamentalRight.html
8.
https://samistilegal.in/article-19/
9.
https://www.brainyias.com/what-is-maneka-gandhi-case/
10.https://blog.ipleaders.in/golden-triangle-indian-constitution/
11.https://www.legalbites.in/golden-triangle-in-the-indian-constitution