The 2012 Nirbhaya rape case had sparked off the debate on
the safety of women at public places. In view of vociferous protest against the
lacunae of law on women safety, the government passed the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act. This legislation seeks to
protect women from sexual harassment at
their place of work. The Bill got the assent of the President on 23 April 2013.
Subsequently, The Act came into force from 9 December 2013.
The objective of the Act is 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.
The need for the act can be understood in terms of
international obligations. The
protection against sexual harassment and the right to work with dignity are
universally recognized human rights by international conventions and
instruments such as Convention on the Elimination of all Forms of
Discrimination against Women, which has been ratified on the 25th June, 1993 by
the Government of India. It is thus expedient to make provisions for giving
effect to the said Convention for protection of women against sexual harassment
at workplace. Sexual harassment is the violation of the fundamental rights of a
woman to equality under articles 14 and 15 of the Constitution of India and her
right to life and to live with dignity under article 21 of the Constitution and
right to practice any profession or to carry on any occupation, trade or
business which includes a right to a safe environment free from sexual
harassment.
It
creates an insecure and hostile work environment, which discourages women’s
participation in work, thereby adversely affecting their economic empowerment
and the goal of inclusive growth. Earlier, there had been lacunae of a comprehensive
law to address this issue except a few provisions of the Indian Penal Code and
the Supreme Court Guidelines in the case of Vishaka vs. State of Rajasthan.
The increasing work
participation rate of women has also made it imperative that a comprehensive
legislation focusing on prevention of sexual harassment as well as providing a
redressal mechanism be enacted.
The
merits of the Act can be gauged from the fact that titdefines “sexual
harassment at the workplace” in a comprehensive manner, in keeping with the
definition laid down in the Vishaka judgment,
and broadening it further to cover circumstances of implied or explicit promise
or threat to a woman’s employment prospects or creation of hostile work
environment or humiliating treatment, which can affect her health or safety.
While the “workplace” in the Vishaka guidelines
is confined to the traditional office set-up where there is a clear
employer-employee relationship, the Act goes much further to include
organisations, department, office, branch unit in the public and private
sector, organized and unorganized, hospitals, nursing homes, educational
institutions, sports institutes, stadiums, sports complex and any place visited
by the employee during the course of employment including the transportation. The definition of employee covers regular/temporary/ad hoc/daily wage employees, whether
for remuneration or not and can also include volunteers. The Act casts a responsibility on
every employer, central and State government to create an environment which is
free from sexual harassment. Employers are required to organize workshops and
awareness programmes at regular intervals for sensitizing the employees about
the provision of this legislation and display notices regarding the
constitution of Internal Committee, penal consequences of sexual harassment. The
Act incorporates a provision for conciliation. The Internal Complaints
Committee can take steps to settle the matter between the aggrieved woman and
the respondent; however this option will be used only at the request of the
woman. The Act also provides that monetary settlement shall not be made a basis
of conciliation. Further, if any of the conditions of the settlement is not
complied with by the respondent, the complainant can go back to the Committee
who will proceed to make an inquiry. The Act prescribes a proper timeframe for
the completion of an inquiry and action by a district magistrate. This may
speed up the process of delivery of justice. The Act has provisions for
providing reliefs to the aggrieved
woman in the interim period including leave and transfer during the
pendency of the inquiry. The Act prohibits disclosure of the identity and
addresses of the aggrieved woman, respondent and witnesses.
However the Act has certain pitfalls which could have
been avoided. Firstly, the Act requires
that every office or branch with 10 or more employees constitute an Internal
Complaints Committee. But if units of the work place are located at
different places, an Internal Committee should be constituted 'as far as
practicable' at all administrative units or offices. Secondly, each Internal
Committee requires membership from an NGO or association committed to the cause
of women. This implies that every unit in the country with 10 or more employees
needs to have one such person in the Committee. As per the Economic
Census 2005, there are at least six lakh establishments that employ less than 10
or more persons. There is no public data on the number of NGO personnel
‘committed to the cause of women’. There could be difficulties in
implementation if sufficient number of such NGO personnel is not
available. Furthermore the involvement of NGOs could make employers less
comfortable in reporting grievances, due to confidentiality.
According
to the Act, two different bodies are called ‘Local Complaints Committee.’ The
Act provides that every District Officer shall constitute a Local Complaints
Committee in the district. It also prescribes that an additional Local
Complaints Committee shall be constituted at the block level to address
complaints in certain cases. The jurisdiction and functions of these committees
have not been delineated. It is also unclear whether the block level committees
are permanent committees or temporary ad hoc committees constituted for dealing
with specific cases.
The Act commits a huge blunder by
failing to include domestic workers in its ambit. The Act should have been
applicable to domestic workers as these employees especially live-in workers
are prone to sexual harassment and abuse, without access to any complaint
mechanism or remedial measures.
The
Act provides that in case a committee arrives at a conclusion that the
allegation was false or malicious, it may recommend that action be taken
against the woman who made the complaint. There may be merit in providing
safeguards against malicious complaints, this clause penalizes even false
complaints (which may not be malicious). This could deter women from filing
complaints.
The
definition of sexual harassment should have encompassed employer-employee relationship
as well as a hostile work environment. These laws should have been gender
neutral.
Notwithstanding
the pitfalls, the Act no doubt is a landmark legislation to enhance the safety
of women at a workplace. But care should be taken to ensure that it is
implemented effectively. The Act should also be duly amended from time to time
to keep pace with changing scenario.
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