Sexual harassment at work: The limits of the law

The Sexual Harassment of Women at Workplace Act retains the essence of the earlier Vishakha Guidelines but does not fix accountability for transgressions

April 02, 2017 11:13 pm | Updated November 13, 2021 10:59 am IST

COIMBATORE, 18/06/2008: Shadow of a woman during 'Vijay Star Nite' in Coimbatore. 
Photo: S. Siva Saravanan

COIMBATORE, 18/06/2008: Shadow of a woman during 'Vijay Star Nite' in Coimbatore. Photo: S. Siva Saravanan

In September 1992, a woman named Bhanwari Devi was raped.

Her fault: she had tried to prevent the marriage of a one-year-old girl. It was part of her job, as a Saathin, or friend, in the Women’s Development Project of the Rajasthan government, as per a government campaign, to persuade villagers to abandon the practice of child marriage. At first, she had suffered social boycott for her temerity. When that didn’t work, five men raped her in front of her husband. A trial court acquitted all five men. Her story, and its aftermath, aren’t hard to find. It is not a pleasant one.

Some activists and lawyers said she was raped solely because of her work. Several activist groups who subscribed to that view filed a Public Interest Litigation in the Supreme Court of India, under the collective platform Vishakha, which sought detailed directions on how sexual harassment of women in the workplace could be prevented. The guidelines the SC issued in 1997, which came to be known as the Vishakha Guidelines, were to be ‘strictly observed in all workplaces’ and were binding and enforceable in law.

 

In December 2013, Vishakha was superseded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, which kept the essence of the Guidelines and added more provisions.

An Act, but what action?

The Act does not satisfactorily address accountability. Notably, it does not specify who is in charge of ensuring that workplaces comply with the Act, and who can be held responsible if its provisions are not followed.

A victim of workplace sexual harassment, who requested anonymity, asked, “Will the CEO or the chairman of a company be made to pay an exemplary fine if the committee is not formed, let alone following the norms? If it is mandatory to submit an audit report at the end of the year on the complaints received, who makes the report and who is it to be submitted to? Who keeps a tab on this? Unless companies are held liable by state governments, the Act will only be a toothless tiger and the only redressal a victim will have is to file an FIR and wait for the endless trial only to result in acquittal.”

Advocate and human rights activist Vrinda Grover is of the opinion that State governments need to take up the slack. “Has any State government asked or tried to find out if companies are following the provisions?” she asks. “Simply by saying we care for the safety of women, nothing will change. Have [governments] monitored and checked if companies are having internal complaint committees (ICCs)? If companies are not implementing the Act, who is holding them responsible? Who is supposed to hold them accountable?”

Senior counsel Rebecca John thinks most women prefer to follow an in-company route of redressal rather than go through the long procedure involved in filing a criminal case and pursuing it to a verdict. “But even now,” she says, “many companies do not have the ICC and there is no check to see if they are following all the rules. In cases where the head [of a company] is responsible [for harassment], it makes the functioning of the ICC questionable: can an employee who is part of the ICC take that kind of pressure? This prevents the Act from what it is meant to be. While you have laws for sales tax registration for a company to comply with, and millions of other laws, you must make implementation of this law also mandatory for companies.”

Can the police act without a formal complaint?

Referring to the recent case involving the CEO of the online media company The Viral Fever, Ms. John says that the police could take some suo motu action. (Suo motu is a Latin term translating to ‘on its own motion’, which in legal terms means an authority taking an action of its own volition, rather than acting on a complaint.) “What the police can do is this. When a complainant comes forward and they are aware that there are more [complainants] from the same organisation, the police should, suo motu, expand the scope of the inquiry. There are ways of taking it forward, like the first woman can be used to establish that the man is a serial offender. But neither the court nor the police have used the law imaginatively. [If they did] it would help a lot of women.”

V.G. Palshikar, a retired judge of the Bombay High Court, disagrees, “This can’t be taken suo motu, as it is criminal law,” he says. “The police may not be in a position to take cognisance of posts on social media. [Only] an FIR should begin the investigation; other women can join [the first complainant] or file another FIR against him. Yet another way could be a PIL by some feminist organisation seeking a direction from the court, so that all FIRs are clubbed together and one particular investigation agency takes it up under the supervision of the High Court. But the power of the police to investigate only flows from a complaint.”

A quick guide to the sexual harassment law

* Paving the way

The Supreme Court’s Vishakha Guidelines were the foundation of the law we now have that addresses workplace sexual harassment. It had several significant provisions.

The employer (and/or other responsible people in a workplace) was duty-bound to prevent or deter sexual harassment, to set up processes to resolve, settle or prosecute in such cases, to support employees even when a third party was responsible for harassment, and to sensitise female employees to their rights and the guidelines.

The SC said that sexual harassment included ‘such unwelcome sexually determined behaviour, whether directly or by implication, such as: physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature.’

If an act amounted to a specific offence under the Indian Penal Code or any other law, employers had to take action to punish the guilty; if an act was not a legal offence or a breach or service rules, the employer had to create mechanisms to address and redress complaints in a time-bound manner.

The Guidelines also decreed the setting up of a complaints committee, and a special counsellor or other support service, assuring confidentiality. This committee would be headed by a woman, have women as at least half its members, and, to pre-empt any undue pressure from senior levels, include a third party such as an NGO familiar with the challenges of sexual harassment.

Central and State governments should adopt suitable measures to ensure that private sector employers implement the guidelines.

* From guidelines to law

The National Commission for Women submitted drafts of a Code of Conduct for the Workplace in 2000, 2003, 2004, 2006 and 2010.

The Protection of Women against Sexual Harassment at Workplace Bill was introduced by the then Women and Child Development minister, Krishna Tirath, in 2007.

It was approved by the Union Cabinet in January 2010, tabled in the Lok Sabha in December 2010. It was referred to the Parliamentary Standing Committee on Human Resources Development, which published its report in November 2011. The Cabinet made amendments in May 2012.

The amended Bill was passed by the Lok Sabha in September 2012, the Rajya Sabha in February 2013, signed by the President in April 2013 and came into force on December 9, 2013 as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.

* The law today

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act retains the essence of the Vishakha Guidelines, and expands on its provisions.

It widens the definition of ‘aggrieved woman’ to include all women, irrespective of age and employment status, and it covers clients, customers and domestic workers.

It expands ‘workplace’ beyond traditional offices to include all kinds of organisations across sectors, even non-traditional workplaces (for example those that involve telecommuting) and places visited by employees for work.

It mandates the constitution of the internal complaint committee (ICC) — and states the action to be taken if an ICC is not formed — and the filing of an audit report of the number of complaints and action taken at the end of the year.

It lists the duties of the employer, like organising regular workshops and awareness programmes to educate employees about the Act, and conducting orientation programmes for the members of the ICC.

If the employer fails to constitute an ICC, or does not abide by any other provision, they must pay a fine of up to ₹50,000. If the offender is a repeat offender, the fine gets doubled. If the employer has been previously convicted of an offence under the Act, he shall be convicted for twice the punishment, and the second offence can also lead to cancellation or non-renewal of his licence.

A Metropolitan Magistrate or a Judicial Magistrate of the first class shall try the offence punishable under the Act.

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