Sexual harassment is a form of sex discrimination projected through unwelcomed sexually determined behaviour.[1] It is a violation of women’s right to life, equality and liberty; creates an insecure and hostile work environment for them.[2] It permeates all strata, ranging from unorganised sector to the corporate.[3]
In India, the development of laws related to sexual harassment has a relatively recent genesis. Prior to 1997, there was no mechanism to deal with complaints made to the authorities by women with regard to sexual harassment at the workplace.[4] The judgment in Vishaka v. State of Rajasthan[5] was the first step where the Supreme Court held the impugned practice to be a violation of human rights. It was a case of the gang rape of Bhanwari Devi, an employee of the Rural Development Programme of Government of Rajasthan who attempted to stop child marriage.
Nearly 15 years after the issuance of Vishaka guidelines, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Analysis of the Act
The said Act is applicable to the country as a whole whether in public, private, formal or informal sectors. The Act attempts to protect vulnerable workers who are not covered by the labour laws or are a part of a union such as domestic workers. The downside in the case of domestic workers being covered in this Act is that their remedy is only a police complaint of sexual harassment, under Section 509 of the Penal Code, 1860 (IPC).
The statute makes it mandatory for all employers, whether in the public or private sector to set up an Internal Complaints Committee (ICC) in order to enquire into complaints of sexual harassment at the workplace, take preventive measures to ensure that the work environment maybe be conducive to women.[6]
The Act provides that complaint of sexual harassment has to be made to ICC or the Local Complaints Committee (LCC) within a period of three months from the date of the incident and in case of a series of incidents, within a period of three months from the date of the last incident.[7] This is an unfortunate provision as the courts from the very beginning have recognised that sexual harassment at workplace entails a relationship of domination between perpetrator and the victim, as a result of which the victim is often unable to protest apprehending adverse consequences upon her conditions of employment, career advancement and even her job itself. This time-limit has not been envisaged by Vishaka[8] judgment or any other judicial precedent. The statute itself permits filing of complaints by persons other than the aggrieved woman because in such cases it is not always possible for the victim herself to come forward.[9] Thus, it is unreasonable that the aggrieved woman’s right to approach the complaints mechanism is extinguished merely because of the time-lapse.
The nature of punishment can be in the form of a written apology, warning, reprimand withholding of promotion, withholding of pay rise or termination from service.[10] However, the punishment imposed can only the ones provided under the relevant service rules or labour law or contract of employment. Monetary compensation can also be paid by the respondent to the complainant, which is deducted from his salary or wages and this provision is irrespective of anything contained in the service rules.[11] The amount of compensation is calculated on the basis of emotional distress faced by the victim, loss in career opportunity, income and financial status of the respondent.[12] A fundamental critique of this is that the power to decide compensation is vested in the hands of a non-judicial body as it is essentially a judicial function.[13] Also, there is no further guidance provided as to how to arrive at the sum of compensation.
The Act provides that before initiating an enquiry, the LCC or ICC has an option to settle the matter through conciliation only at the request of the aggrieved woman, although no monetary compensation can be a part of this process.[14] This provision, however, is severely criticised; the Verma Committee stated that any such attempt is yet another way to undermine the dignity of women.[15] It also ignores the mandate of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Constitution of India which hold it unethical to expect to negotiate an outcome between the aggrieved woman and alleged perpetrator and being against fundamental rights respectively.
Section 14 of the Act provides for punishment of the complainant in the event of the false or malicious complainant. It clarifies that mere inability to substantiate a complaint or provide adequate proof will not attract action against the complainant. However, it is problematic as subjecting the woman to such fear and distress even before bringing up the complaint defeats the very purpose of the Act. If such provisions have to be made at all, the power to decide should be in the hands of courts of law as opposed to bodies such as ICC or LCC. Right to appeal is also available in accordance with provisions of the service rules applicable or where no such rules exist, under the Industrial Employment (Standing Orders) Act, 1946.[16] The statutory limitation is 90 days from the date of such action/recommendation. Appellate authority varies from State to State. The Act also confers duties upon the employer[17] to take steps to ensure a safe working environment for women employees.
With regard to examine allegations of sexual harassment levelled against Judges/Chief Justices of High Courts (HCs) and Judges of the Supreme Court, the decision rendered in C. Ravichandran Iyer v. A.M. Bhattacharjee[18] laid down the process of “in-house procedure”. In this, the allegations against a Judge are examined by his peers. Its constitution is under the charge of the Chief Justice of India; it is confidential and kept out of public domain to preserve the credibility of the institution. However, in Addl. District and Sessions Judge ‘X’ v. High Court of M.P.[19], it was held that the Bench examining such allegations should not consist of the Judges from the same court.
Comparative Analysis with Laws Across the World
The 2013 Act like the provisions in Australia, Switzerland is inclusive as far as widening the definitions of sexual harassment, workplace, and aggrieved woman are concerned unlike countries such as Brazil where it is restricted to persons in a superior position asking for sexual favours[20] or Germany where it is not punishable by any law at all. But it lacks strict punishments such as imprisonment and large sums of fine payable, in countries such as France, Zimbabwe, and Israel.
It is unfortunate that the 2013 Act does not place any obligation on the employer on the grounds of vicarious liability to give monetary compensation to the aggrieved woman. To this extent, the aggrieved woman has to approach the court for damages by the way of tort law.[21] In the United Kingdom (UK), an employer can be held vicariously liable for the harassment by co-workers. This has been illustrated in cases such as Jones v. Tower Boot Co. Ltd.[22] and Chief Constable of Lincolshire Police v. Stubbs[23]. In the United States of America (USA) also, the employer is vicariously liable but in defence, he/she only needs to demonstrate that immediate action was taken once the incident had come to the attention of the employer.[24]
In India, in only a limited number of cases courts have accorded compensation to aggrieved women following the failure of employers to comply with Vishaka guidelines. Manisha Sharma v. Union of India[25] was one such case, where there was sexual harassment at the workplace in the Northern Railways. The Court held that the composition of the Inquiry Committee was not as per the Vishaka guidelines, thus the Indian Railways was held vicariously liable and had to pay compensation.
There is a dire need to address the loopholes in the present law, in order for it to be more pertinent for women and the duty of employers to ensure a lawfully constituted and approachable Complaints Committee.
† IIIrd year, BA LLB (Hons.), National Law University, Delhi, e-mail: simran.jain@nludelhi.ac.in.
[1] Vishaka v. State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC 3011.
[2] Geetha K.K., Bill on Sexual Harassment: Against Women’s Rights, (2012), Economic and Political Weekly, Vol. XLVII No. 3.
[3] Ibid.
[4] Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014) p. 2.
[5] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
[6] S. 4(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act).
[7] S. 9(1) of the 2013 Act.
[8] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
[9] Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).
[10] R. 7(6) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (2013 Rules).
[11] S. 13(3)(ii) of the 2013 Act.
[12] S. 15 of the 2013 Act.
[13] Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).
[14] S. 10 of the 2013 Act.
[15] Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law, 66 (23-01-2013).
[16] R. 11 of the 2013 Rules.
[17] S. 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
[20] Ungender, Ensuring Diversity and Inclusivity through Legal Compliance <https://www.ungender.in/single-post/Sexual-Harassment-workplace-laws-across-the-world>
[21] Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).
[22] 1996 EWCA (Civ) 1185 : 1997 ICR 254.
[23] 1999 IRLR 81.
[24] Ibid.
[25] 2012 SCC OnLine Del 6352 : (2013) 196 DLT 741.