Sexual Harassment At Workplace (Prevention, Prohibition & Redressal) Act,2013

Author: Advocate Kanchan Khatana and Associate Supriya Pathak

INTRODUCTION

Pooja, a girl belonging to a well-educated family, completed her graduation from a top B-school and is placed in a reputed company with a good salary package. In spite of a successful career, Pooja is still stressed and is unhappy. Why? The reason is though having all these, Pooja is sexually harassed by her male colleagues in her office. And hence she is all the time worried about her safety at her workplace where she spends about 9- 10 hours of her day.

This is not just the story of Pooja. There are many instances where a woman is sexually harassed at her working place. According to a survey of 2010, Center for Transforming India survey (2010) revealed that nearly 88 percent of women witnessed some form of workplace sexual harassment during the course of their work.^[1] India having the lowest ratio of working women in the world, experiences such pathetic conditions of women. 

In 1997, The Supreme Court of India for the first time acknowledged this particular issue in the case of Vishakha v. State of Rajasthan^[2].In this case, sexual harassment at the workplace was recognized by the Apex Court as well as the need to constitute a mechanism for the same was felt. Because there was no legislation particularly to address this offense, The Supreme Court laid down certain guidelines to regulate the issue until legislation is brought into existence. These guidelines are popularly known as Vishakha Guidelines and are a prominent example of judicial activism.

After 16 long years of Vishakha Guidelines, sexual harassment at workplace (prevention, prohibition & redressal) Act,2013 came into existence. The Act adopted all the guidelines and also revised it with added provisions for compliance. The Act provides for the protection of women from sexual harassment in work places be it public place, private place, organized, unorganized sector. Students, interns, labours, temporary, permanent workers are all covered by this Act regardless of their age and nature of employment^[3].

What Constitutes Sexual Harassment

Sexual harassment at workplace is a form of gender discrimination violating a women’s fundamental rights of Article 14( Right to equality), Article 15( Right against discrimination), Article 16(Right to Equality in employment) and Article 21 (Right to life and personal liberty) given under the Constitution of India. Workplace harassment is an obstacle for the working women as she is not able to give her best in her work which affects her career as well as her health. It puts the women into great suffering both socially as well as emotionally.

Under the Act, Sexual harassment includes any one or more of the following unwelcome

acts or behaviour (whether directly or by implication) namely:-

(i) physical contact and advances; or

(ii) demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual

nature^[4]

REDRESSAL

The Prevention of sexual harassment at workplace Act, 2013 provides for a two tier system for redressal of grievances i.e. the Internal Complaint Committee (ICC) and the Local Complaint Committee (LCC).

Internal Complaint Committee (ICC) – The Internal complaint committee is constituted under section 4 of the Sexual Harassment at Workplace Act,2013. When there are 10 or more than 10 employees at a workplace then it is mandatory to constitute an Internal Complaint Committee under the Act. The ICC of every workplace shall look after the complaints received from any employee who is harassed and redress them. It will look after the implementation of Anti sexual harassment policies. The employees of the workplace are the members of the committee.

Local Complaint Committee (LCC) – Local Complaints Committee (LCC) The District Officer will constitute an LCC in every district so as to enable women in the unorganised sector or small establishments to work in an environment free of sexual harassment. The LCC will receive complaints:

1. From women working in an organisation having less than 10 workers;
2. When the complaint is against the employer himself;
3. From domestic workers.

Current scenario of LCC across India

With the mandatory compliances formulated by the Ministry of Women and Child Development, the Government agencies at the Centre as well as State are organizing workshops as well as training and skill development programmes for sensitizing and creating awareness amongst the people and employees about the sexual harassment act. So far i.e till July,2018, 29 States have notified District Officers by constituting the Local Complaint Committee^[5]. The Ministry also issues advisories from time to time to all States and Union Territories, Ministries/Departments in Government of India and leading business organisation Associated Chambers of Commerce & Industry of India (ASSOCHAM), Federation of Indian Chambers of Commerce and Industry (FICCI), Confederation of Indian Society, Chamber of Commerce & Industry (CCI), and National Association of Software and Services Companies (NASSCOM) so that the Act should be complied with effectively and no aggrieved women should be left out^[6]. However , not all states have complete compliance and are yet to set up LCC in many districts .

The Ministry of Women and Child Development has started an online portal for registering complaints of sexual harassment known as Sexual Harassment electronic - Box (SHe-Box) in which aggrieved women employees from all over the country can register the complaints of sexual harassment at workplace.

 Key compliance by employer/establishment

The Act provides certain obligations or compliances on the part of the employer of an establishment which are mandatorily complied with under section 19. They are as follows:-

• Provide a safe working environment for the women employees working in the establishment.
• Display the penal consequences of sexual harassment at such places where majority of people can view it. The Anti Sexual Harassment Policy which is formulated by the establishments should also be displayed.
• Organizing various programmes for creating awareness about the provisions of the Act for the employees also sensitizing the public about the issue.
• Orientation and training the members of the Internal Complaint committee.
• Providing the essential facilities to ICC or the LCC while dealing with the complaints.
• Monitoring the timely submission of reports to the ICC or the LCC.
• Helping the aggrieved women in registering complaint under Indian Penal Code or any other law, if she so desires.
• Mentioning the number of cases filed and disposed of under the Act within establishment’s annual report.

Non Compliance of Act on Corporate

Due to the absence of any particular legislation on the sexual harassment at workplace the Vishakha Guidelines were given a minuscule importance. In 2013, after the Prevention of Sexual Harassment at Workplace Act came into effect the corporate sector starting recognizing and adopting it. The Act specifically lays down certain obligations which are discussed above, on the part of the employer or the establishment that are to be mandatorily complied with. The non compliance of the provisions of the Act leads to a fine of Rs 50,000 in the first instance and for the second instance leads to the cancellation of business license of the establishment.

In the year 2018, the Ministry of Corporate Affairs ,with the recommendation of The Ministry of Women And Child Development, have made certain amendments in the Companies (Accounts) Amendment Rules, 2018 with a view to tighten the compliance of the Prevention of Sexual Harassment at Workplace Act, 2013 by the corporate sector. It has amended Rule 8 to include Clause (x) which now requires every Company to report compliance with the provisions relating to the constitution of an Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Clause (x) of Rule 8 (5) of the Rules reads as follows:

"A statement that the Company has complied with provisions relating to the constitution of Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013."^[7]

The said amendment makes it binding for every company to report compliance of the provisions of the Act regarding the constitution of ICC. If there is non-compliance on the part of Company in the reporting will result in imposition of a fine on the defaulting company under section 134 of the Act, which shall not be less than Rs. 50,000/- but which may extend to Rs. 25,00,000/- and imprisonment for every officer of the Company who is in default for a term which may extend to 3 years or with fine in the range of Rs. 50,000/- to Rs.5,00,000/-^[8] However the One Person Company and Small Companies which are defined under the Companies Act,2013 are exempted from this rule.

Conclusion

After the enactment of the Prevention of Sexual Harassment at Workplace Act, 2013, the corporate governance changed dramatically. The working women in India got a new status. Their protection was given a priority which eventually led to the development of the women. Given the stringent compliances on the corporate, the employees are being made aware of appropriate conduct. They are educated to raise their voices to stop the discrimination. These actions are creating a zero tolerance among the workforce against any sexual harassment and misconduct in the work culture. Hence to sum up the Act is slowly but steadily achieving and fulfilling its aims and objectives of backing today’s independent working women.

^[1] https://www.legallyindia.com/views/entry/sexual-harassment-of-women-at-workplace

^[2] (1997) 6 SCC 241

^[3] Section 2(o) of the Act,2013

^[4] Section 2(n) of the Act,2013

^[5] http://pib.nic.in/newsite/PrintRelease.aspx?relid=181217 (Press Information Bureau, Govt of India)

^[6] Ibid.7

^[7] http://164.100.117.97/WriteReadData/userfiles/Notification%20Uner%20Companies%20Act.pdf (Notification)

^[8] http://www.mca.gov.in/SearchableActs/Section134.htm