Complaints Mechanism under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 By Ahsan Rashid

Introduction
Sexual harassment in workplace is a serious irritating factor that renders women’s involvement in works unsafe and affects right to work with dignity. It is unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment. Generally sexual harassment is a sexually oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favours. However it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.
However, before 1997, women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code that deals with the criminal assault of women to outrage women’s modesty, and Section 509 that punishes an individual or individuals for using a word, gesture or act intended to insult the modesty of a woman. These sections left the interpretation of ‘outraging women’s modesty’ to the discretion of the police officer. The entire scenario changed in 1997 with the introduction of Vishaka guidelines.
On 23rd April 2013, the legislature finally brought into force a comprehensive legislation dealing with the protection of women against sexual harassment at workplace by enacting “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The Act has in fact sought to widen the scope of the guidelines issued by the Supreme Court by bringing within its ambit (amongst other things) a “domestic worker” (sec 2e) defined to mean a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer.
The Act makes it mandatory for all offices with 10 or more employees to have an internal complaints committee to address grievances in a stipulated time or face penalty. Sexual harassment cases at workplace, including against domestic help, will have to be disposed of by in-house complaint committees within 90 days failing which a penalty will be imposed and repeated non-compliance of the provisions of the law can even lead to cancellation of licence or registration of the organisation. Sexual harassment at workplace may lead to termination of service of the accused, withholding of promotions and increments, and payment of reasonable compensation to the complainant. According to the rules, if allegations against the accused turn out to be false and after inquiry, are found to be made with a malicious intent, the complainant may face similar penal provisions as listed for the accused.[1]
This paper presentation is on the topic of complaints mechanisms in context of exploitation and abuse under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The paper focuses on existing practice, with an eye towards highlighting emerging best practice and providing practical guidance on the use and effectiveness of complaints mechanismsunder the Act. A focus is placed on lessons learnt from the previous position of law. By reviewing successes and failures of complaint mechanisms, it helps us to better understand what components of effective mechanisms are, and what the direction should be.[2]

Understanding sexual Harassment
Women excel in all fields including space exploration and rocket science. Women play a vital role in economic development of the country and their contribution is nothing short of their male counterparts. However there are still several issues and problems that women face today. Sometimes, they are not treated equally in their workplace and are considered as inferior to their male co-workers. In some cases they do not get the same benefits as that of a male employee. The major issues and problems that women face in their work places includes unequal pay, security, sexual harassment, lack of proper family support, deficient maternity leave, etc.[3]
Sexual Harassment is a major issue that women face at their workplace and many women fall victim of sexual harassment at workplace. At times employers try to take sexual favors from women employee in return of other benefits and promotions. It can be classified into various categories like
  • Physical contact and advances
  • Showing pornography
  • A demand or request for sexual favors
  • Any other unwelcome physical, verbal or non-verbal activities (like whistling, obscene jokes, comments about physical appearances, threats, innuendos, gender based derogatory remarks etc.)[4]
The UN Convention of the Elimination of all forms of Discrimination Against Women(CEDAW), adopted in 1979 at Beijing, recognizes and also acknowledged that sexual Harassment is a serious problem and has categorized it as gender discrimination and a form of gender based violence. Most developed and developing countries including India are a signatory to it. This puts the onus on the employers to provide a safe and healthy workplace to all its employees. To accomplish this, the employers deploy various policies. Few of them are listed below
  • Education campaign for women employees about their rights
  • Training for managers and others in workplaces including acceptable and professional workplace behavior, and diversity training
  • Forming a complaints committee, which will keep the privacy of the employee complaining and investigate the complain independently
  • Creating appropriate work conditions to ensure that there is no hostile environment towards women
  • Ensuring women do not work late hours, except in secure situations
  • Ensuring participation of women at all level of management
  • Providing safe pickup and drop facility in odd hours
  • Providing adequate maternity leaves
  • Providing day care facilities for working mothers
  • Retention of performance ratings - this means that organizations secure the performance ratings of women during maternity leave.
Sexual harassment: the law
According to the law in India, sexual harassment violates the women’s fundamental right of gender equality and life with dignity under article 14 and article 21 respectively. Although there are no specific laws for curbing sexual harassment at the workplace in India but certain provisions are there in other legislation like Indian Penal Code, which provides protection against women’s sexual harassments such as in IPC: Section 294 deals with obscene acts and songs at public place, Section 354 deals with assault or criminal force against women, Section 376 deals with rape and Section 510 deals with uttering words or making gestures which outrages a women’s modesty. There is another act passed by legislature for protecting women’s interest namely, Indecent Representation of Women, Act (1997). This act has not been used in cases of sexual harassment but there are certain provisions in this act which can be used in 2 ways: 1) If a person harasses another by showing books, photographs, paintings, films,etc. containing indecent representation of women than he will be liable with minimum 2yrs. imprisonment. 2) Section 7 of this act punishes companies, if there is indecent representation of women like showing pornography. The harassed women can also go to civil courts for tortious actions like mental anguish, physical harassment, loss of income in employment of victim, etc Sexual harassment can be distinguished on two basis, one of them is quid pro quo in which a woman gets sexually harassed in exchange of work benefits and sexual favours this also lead to some retaliatory actions such as demotion and making her work in difficult conditions. Another is ‘hostile working environment’ which imposes a duty on employer to provide the women worker with positive working environment and prohibits sexist graffiti, sexual remarks showing pornography and brushing against women employees.

Sexual Harassment: Case laws in India
There are various cases which had come before the courts in India and the judgment in most of the cases has motivated women to register more complaints as compared to earlier: 1) Apparel Export Promotion Council v. A.K Chopra The Supreme Court in this case declared that sexual harassment is gender discrimination against women and also said that any act or attempt of molestation by a superior will constitute sexual harassment. 2) Mrs. RupanDeol Bajaj v. Kanwar Pal Singh Gill This case has changed the meaning of the terms, modesty and privacy in such a way that, any kind of harassment or inconvenience done to a women’s private or public life will be considered as an offence. 3) Vishaka& others Vs. State of Rajasthan & others In this case Supreme Court laid down the following guidelines which recognized it not only as a private injury to an individual woman but also as the violation of her fundamental rights. These guidelines are significant because for the first time sexual harassment is identified as a separate category of legally prohibited behavior. These are subjected to all workplaces until any other legislation is passed by parliament in this regard. These guidelines are not limited only to government employers and should also be followed by employers in private sectors. 4) MedhaKotwalLele&ors. v. Union of India & Others This case helped the Vishakha’s case to implement the guidelines successfully by issuing notices to all states and the union territories to impart the necessary steps.
Complaints Mechansim before the Act
It is the duty of every employer to deliver a sense of security to every women employee. Government should make strict laws and regulations to prohibit sexual harassment. Any act of such nature should result in disciplinary actions and criminal proceedings should also be brought against the wrong doer. The organization should have a well set up complaint mechanism for the redressal of the complaints made by the victim and should be subjected to a reasonable time. This complaint mechanism should be in the form of complaint committee which need to be headed by a women member and at least 50% of the committee members should be women so that victims do not feel ashamed while communicating their problems. This complaint committee should also have a third party involvement in the form of NGO or other body which is familiar with this issue. There is a need of transparency in the functioning of this committee and for that there is a requirement of submission of annual report to the government. · Issues relating to sexual harassment should not be a taboo in the workers meeting and should be discussed positively. It is the duty of the organisation to aware the female employees about their rights by regularly informing them about the new guidelines issued and legislation passed. · The employer or the person in charge is duty biased to take the necessary and reasonable steps to provide support to the victim if sexual harassment takes place due to the act or omission of the third party. These guidelines are not limited only to government employers and should also be followed by employers in private sectors. 4) MedhaKotwalLele&ors. v. Union of India & Others This case helped the Vishakha’s case to implement the guidelines successfully by issuing notices to all states and the union territories to impart the necessary steps.
Ten years later, although a bill was introduced in 2007, for unexplained reasons it was not made into an Act. Following Vishaka, in MedhaKotewalLele’s case (2013), all governments were directed to amend the relevant service rules, and incorporate a provision by which the enquiry report given by a complaints committee would replace the enquiry by an employer, who was to initiate action based on the report alone. Under this process, an aggrieved woman employee need not depose more than once — first before the Vishaka Committee and again during a departmental enquiry.
Complaint Mechanism under 2013 Act
The Act contemplates the constitution of Internal Complaints Committee (“ICC”) (Sec. 4) at the work place and Local Complaints Committee (“LCC”) at district and block levels (Sec. 6). A District Officer (District Collector or Deputy Collector) shall be responsible for facilitating and monitoring the activities under the Act
Every workplace employing 10 or more employees is required to constitute an ICC. The ICC is required to consist of at least four members, and its presiding officer is required to be a woman employed at a senior level. Provisions have been made in case no senior woman employee is available, to nominate a woman presiding officer from another office, administrative unit, workplace, or organisation. Further, one half of the members must be women. LCCs are to be set up by the appropriate government which shall receive complaints in respect of establishments that do not have ICCs on account of having fewer than 10 employees and to receive complaints from domestic workers.
 Steps involved in the Complaint Process –Empowerment?
Step I
A complaint is to be made in writing by an aggrieved woman within 3 months of the date of the incident. The time limit may be extended for a further period of 3 months if, on account of certain circumstances, the woman was prevented from filing the complaint. If the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death, her legal heirs may do so.
 Step II
Upon receipt of the complaint, the ICC or LCC must proceed to make an inquiry in accordance with the service rules applicable to the respondent or in their absence, in accordance with rules framed under the Act.
Step III
The inquiry must be completed within a period of 90 days. In case of a complaint by a domestic worker, if in the opinion of the LCC a prima facie case exists, the LCC is required to forward the complaint to the police to register a case under the relevant provisions of the Indian Penal Code.
Step IV
Where the ICC finds that the allegations against the respondent are proven, it must submit a report to the employer to: (i) take action for sexual harassment as a misconduct in accordance with the provisions of the applicable service rules or where no service rules exist, in accordance with rules framed under the Act; (ii) to deduct from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs.
Step V
The employer must act on these recommendations within 60 days.
Scope for Conciliation and Settlement
Before initiating an inquiry, the ICC or LCC may, at the request of the aggrieved woman, take steps to arrive at a settlement between the parties. However, no monetary settlement can be made as the basis of such conciliation (Sec. 10(1))
 In case the ICC or LCC is of the view that a malicious or false complaint has been made, it may recommend that a penalty be levied on the complainant in accordance with the applicable service rules (Section – 14). However, an inquiry must be also made. Mere inability to substantiate a complaint will not attract action under this provision.
The Duties of an Employer
The Act makes it the duty of every employer to: a) provide a safe working environment at the workplace which shall include safety from all the persons with whom a woman comes into contact at the workplace; b) display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting the ICC; c) organise workshops and awareness programmes; d) provide necessary facilities to the ICC for dealing with complaints and conducting inquiries; e) assist in securing the attendance of the respondent and witnesses before the ICC; f) make available such information to the ICC or LCC, as it may require; g) provide assistance to the woman if she so chooses to file a criminal complaint; h) initiate criminal action against the perpetrator; i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct; and j) monitor the timely submission of reports by the ICC.
Penalties
Where the employer fails to comply with the provisions of the Act, he shall be liable to be punished with a fine which may extend to Rs. 50,000. In case of a second or subsequent conviction under this Act, the employer may be punished with twice the punishment prescribed or by cancellation of his licence or withdrawal of his registration.
Conclusion
Policies and legal mechanisms alone cannot help in curbing the problems faced by women at work place - the overall attitude and acceptance level of the people of needs to change. Just letting women work outside home does not mean that society treats men and women equally. The issues and problems that women face in their workplaces should be put to an end and then only it can be said that men and women have equal status. Although there are various laws that are made for protection of women even in workplace but due to lack of proper implementation and interpretation of law, it has not been quite effective in protecting women from the crimes and inequality in the workplace. Organizations are going out of their way to ensure they provide safe work environment for their women employees, and are also putting up policies to ensure the women feel motivated to work and continue their career, even after child birth.



[1]Understanding The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013Dr.BismiGopalakrishnan is the Assistant Professor at Department of Law, University of Kerala.
[2]Literature Review: Complaints Mechanisms and Handling of Exploitation and Abuse Veronika Martin Submitted to the Humanitarian Accountability Partnership Standard Review Process Working Group on Handling Complaints of Exploitation and Abuse March 9, 2010
[3]Publication: Combatting Harassmentby Anne Litwin and Sophie Hahn Published in Managing in the Age of Change: Essential Skills to Manage Today's Workforce, Roger A. Ritvo, Anne Litwin, and Lee Butler, editors, Burr Ridge, Illinois: IRWIN Professional Publishing, 1995.
[4]As defined in the Supreme Court guidelines (Vishakha vs State of Rajasthan, August 1997).

Ahsan Rashid is Assistant Professor of Law at Central University of Bihar.

Post a Comment

0 Comments