BY HARPREET KAUR, ADVOCATE

INTRODUCTION

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as “the Act”) was passed by the Lok Sabha (the lower house of the Indian Parliament) on 3 September 2012. It was passed by the Rajya Sabha (the upper house) on 26 February 2013. The Bill got the assent of the President on 23 April 2013. The Act came into force from 9 December 2013. This Act is based on the Vishaka Guidelines for prevention of sexual harassment introduced by the Supreme Court of India.

OBJECT OF THE ACT

The Preamble of the Act provides that “An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.”

According to the Press Information Bureau of the Government of India[1]:

“The Act will ensure that women are protected against sexual harassment at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth.”

FEATURES OF THE ACT

  • The Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in Vishaka v. State of Rajasthan(1997). It includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
    1. Physical contact and advances; or
    2. A demand or request for sexual favours; or
    3. Making sexually coloured remarks; or
    4. Showing pornography; or
    5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature[2].
  • It envisages the setting up of grievance redressal forums for both organized and unorganized sectors.
  • It also provides safeguards against false or malicious charges[3].
  • The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors[4].
  • The definition of an ‘employee’ under the Prevention of Workplace Sexual Harassment Act is very wide and covers regular, temporary, ad-hoc employees, daily wage workers, contract labourers, probationers, trainees, etc[5].

INTERNAL COMPLAINTS COMMITTEE AND LOCAL COMPLAINTS COMMITTEE

The  Act requires an employer to set up an ‘internal complaints committee’ (ICC”) at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment[6]. The government is in turn required to set up a ‘Local Complaints Committees’ (LCC) at the district level to investigate complaints regarding sexual harassment 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[7]. The Sexual Harassment Act also sets out the constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time bound manner.

The Act provides that the ICC and LCC shall, while inquiring into a complaint of workplace sexual harassment, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of[8]:

  • summoning and enforcing the attendance of any person and examining him on oath;
  • requiring the discovery and production of documents; and
  • any other matter which may be prescribed.

PROCESS FOR COMPLAINT AND INQUIRY

An aggrieved woman who intends to file a complaint is required to submit written complaint, along with supporting documents and names and addresses of the witnesses to the ICC or LCC, within 3 months from the date of the incident and in case of a series of incidents, within a period of 3 months from the date of the last incident. The ICC/ LCC can extend the timeline for filing the complaint, for reasons to be recorded in writing, by a period of 3 months. The law also makes provisions for friends, relatives, co-workers, psychologist, psychiatrists, etc. to file the complaint in situations where the aggrieved employee is unable to make the complaint on account of physical incapacity, mental incapacity or death[9].

Section 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 makes a provision for conciliation. Where a settlement is arrived at, no further inquiry is required to be conducted by ICC/LCC. If ICC/LCC is of opinion that prima facie a case exists then within seven days[10] it shall forward a complaint to police for registration of case under section 509 of IPC.

According to Section 11(4) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 the inquiry shall be completed within a period of ninety days.

INTERIM RELIEFS

The Act empowers the ICC and the LCC to recommend to the employer, at the written request of the aggrieved employee, interim measures such as[11]

  • transfer of the aggrieved woman or the respondent to any other workplace; or
  • granting leave to the aggrieved woman up to a period of 3 months; or
  • granting any such relief as may be prescribed.

ACTION AGAINST FRIVOLOUS COMPLAINTS

So as to ensure that the protections contemplated under the Sexual Harassment Act do not get misused, provisions for action against “false or malicious” complainants have been made[12].

EMPLOYER’S OBLIGATIONS

In addition to ensuring compliance with the other provisions stipulated, the Act casts certain obligations upon the employer which are as follows[13]:

  1. make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9;
  2. assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
  3. provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
  4. organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
  5. provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
  6. display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
  7. provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
  8. cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being 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;
  9. treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
  10. monitor the timely submission of reports by the Internal Committee.

If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Act prescribes a fine of up to INR 50,000[14]. 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.

Photo Credits: https://yourstory.com/2014/03/sexual-harassment/

[1] http://pib.nic.in/newsite/erelease.aspx?relid=66781%7C

[2]Section 2(n)  of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[3] Section  14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[4] http://pib.nic.in/newsite/erelease.aspx?relid=66781%7C

[5] Section 2(f) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[6] Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[7] Section 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[8] Section 11(3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[9] Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[10] Section 11(1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[11] Section 12(1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[12] Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[13] Section 19 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

[14] Section 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act

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