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UNDERSTANDING, PREVENTING AND REDRESSING SEXUAL HARASSMENT AT THE WORKPLACE

--- Institutions redressing sexual harassment and abuse | Harassment in the workplace in India --- 

Meera Kaura Patel [1]

1. INTRODUCTION

While the role of women in India has been traditionally perceived to be restricted to the confines of home, the empowered women of modern India have been challenging every patriarchal stereotype and are taking part in the economy, both in rural and urban areas. However, unfortunately, even though women constitute almost 48% of Indian population and while the literacy rate of women continues to increase, they only account for about 22.5% of the workforce in India.[2] The low participation of women to the Indian workforce is attributed to several factors, including but not limited to the patriarchal attitudes of attributing shame or guilt in choosing work over family, increased wages or salaries of the male partners, the added burden of household work due to gender roles in India, child birth, lack of safe infrastructure such as safe transport and working places, sexual harassment at workplace, lack of crèche facilities at workplace, discrimination, low pay, etc. One of the key factors contributing to the low participation and low productivity of women at workplace is sexual harassment at workplace. It is recognized that sexual harassment results in violation of fundamental rights of a woman of equality under Article 14 and 15 of the Constitution of India, Until 1997, her right to life and live with dignity under Article 21 of the Constitution of India and right to practice any trade or profession which includes the right to work in a safe atmosphere, which rights are also recognized under International Conventions, e.g. Convention on the Elimination of all forms of Discrimination against Women (“CEDAW”) which has been ratified by India in 1993. Until 1997, there was no framework providing the manner in which sexual harassment at workplace was to be addressed by an employer although women could lodge criminal complaints under Sections 354 and 509 of the Indian Penal Code.[3] In 1997, the Hon’ble Supreme Court of India laid down some guidelines for addressing sexual harassment at workplace pursuant to a Public Interest Litigation filed in the Supreme Court in Vishakha & Others v. State of Rajasthan.[4]Subsequently, incorporating the guidelines passed by the Hon’ble Supreme Court, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the “SHWWA”) was enacted which makes it the responsibility of every organisation, institution or corporate to provide an atmosphere at workplace which is conducive to women and where women can thrive without facing any sexual harassment. This article aims at providing relevant information to the corporates and other institutions/organizations about their duties and responsibilities under SHWWA.

1. SEXUAL HARASSMENT AND OTHER OFFENCES AGAINST WOMEN - Sexual Harassment in the workplace in India

Sexual Harassment in the workplace in India 

SHWWA

According to SHWWA, sexual harassment in the workplace in India includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:

1. Physical contact, or
2. Demand or request for sexual favours, or
3. Sexually coloured remarks, or
4. Showing pornography, or
5. Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.[5]

Additionally, SHWWA also provides that the following circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:

1. Implied or explicit promise of preferential treatment in her employment.
2. Implied or explicit threat of detrimental treatment in her employment.
3. Interferes with her work or creating an intimidating or offensive or hostile work environment for her.
4. Humiliating treatment likely to affect her health or safety.

In other words, SHWWA also covers concepts of 'quid pro quo harassment' and 'hostile work environment' as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment.

Indian Penal Code, 1860

Section 354A, Indian Penal Code also provides that a man committing any of the following acts—

• physical contact and advances involving unwelcome and explicit sexual overtures; or
• a demand or request for sexual favours; or
• showing pornography against the will of a woman; or
• making sexually coloured remarks,

shall be guilty of the offence of sexual harassment. It further provides that any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) above shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both, and any man who commits the offence specified in clause (iv) above shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Other relevant offences against women | Institutions redressing sexual harassment and abuse 

Indian Penal Code [Institutions redressing sexual harassment and abuse]

Section 294 makes it an offence to do any obscene act in public.[6] Sections 326A and 326B make it an offence for voluntarily causing grievous hurt by use of acid and voluntarily throwing or attempting to throw acid.

Section 354B makes it an offence punishable with imprisonment for a term between three to seven years which involves a man using criminal force upon a woman to disrobe in a public place.[7]

Section 354C makes the act of voyeurism an offence wherein any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image, and such man may be punished with imprisonment for a term between one to three years on first conviction and between three to seven years on second or subsequent conviction.[8]

Section 354D makes the act of stalking an offence which makes it punishable for a man to follow a woman and contact or attempt to contact such woman to foster personal communication repeated despite the denial by the woman, or monitors the use of a woman of the internet/emails/electronic communication or watches or spies on a woman in any manner that results in fear of violence or serious alarm or distress in the mind of the woman and such man may be punished with an imprisonment for a term between one to five years.[9]

• APPLICABILITY OF SHWWA [Institutions redressing sexual harassment and abuse]

Contrary to popular misconceptions, the provisions of SHWWA are not only applicable to big corporates but also households. The definition of “workplace” is very wide and includes the organized sector, unorganized sector as well as households. “Workplace” has been defined in SHWWA as follows:

• any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
• any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service;
• hospitals or nursing homes;
• any sports institute, stadium, sports complex or competition or games venue whether residential or not used for training, sports or other activities relating thereto;
• any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;
• a dwelling place or a house.[10]

Furthermore, the provisions of SHWWA also extend to the workplace or establishments falling in the category of “unorganized sector” which has been defined as an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.[11]

Under SHWWA, an aggrieved woman is described in relation to two working different environments — workplace (i.e. (i) to (v) above) and in relation to a dwelling place or a house (i.e. (vi) above). In relation to a work place, the aggrieved women includes women of any age who might or might not be employed in the said workplace but who allege to have been subjected to actions constituting sexual harassment by the respondent. With respect to workplace constituting a dwelling place or a house, an aggrieved woman would be any woman employed in the said dwelling or house.[12] “Employee” is described as a person employed at a workplace on temporary or ad hoc or daily wage basis, employed either directly or indirectly (through an agent), including a contractor irrespective of whether they were employed with or without the knowledge of the principal employer, regardless of the fact that the workers are getting paid or not, or that they work there on a voluntary basis and if their terms or employment are implied or expressed, and includes a co-worker, contractor, probationer, trainee, apprentice or called by any other name.[13] “Employer” means the head of the department, organization, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority may specify, in relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of appropriate government or local authority or otherwise, and in relation to a workplace not mentioned in above categories (except household), any person who is responsible for the management, control and supervision of the workplace, which includes the person or board or committee responsible for formulation and administration of policies for such organisation.^[14] Moreover, such head of institution or person responsible for the management, control or supervision of the workplace shall also be the person responsible for discharging contractual obligations towards the employees.^[15] In relation to a household, employer means a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker.^[16] “Domestic worker” means 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.[17]

1. FRAMEWORK AND PROCEDURE UNDER SHWWA

1. Complaint Committees

SHWWA contemplates two kinds of complaint mechanisms- Internal Complaints Committee (“ICC”) and Local Complaints Committee (“LCC”), i.e. a complaint mechanism within the organisation and outside the organisation, in order to sufficiently safeguard the interests of aggrieved women. The Complaints Committees must have 50 per cent representation of women. ICC or LCC members will hold their position not exceeding three years from the date of their nomination or appointment.

Pursuant to the provisions of SHWWA, it is mandatory for every employer (especially where the number of employees exceed 10 in number) to constitute an Internal Complaints Committee (“ICC”).[18] However, if an establishment has less than 10 workers, or if it has not constituted ICC, or if the complaint is directed against the employer (including head of the establishment or person responsible for management, supervision and control of employee or the person who has employed domestic worker, etc.), the complaints by an aggrieved person in relation to sexual harassment shall be made to LCC.

Membership and Functioning of the Internal Complaints Committee (“ICC”)

Members of ICC shall be nominated by the employer and shall consist of the following members:

• The presiding officer shall be a woman from senior management. An exception could be applicable in the case of absence of woman at the senior level. In case there is no woman employee at the desired level, such a woman could be nominated who is presiding officer from another office/unit/department of the same
• Minimum two members of the committee should be employees having experience in the field of cases relating to women or social work or possess legal knowledge.
• One of the members should belong to an NGO or an organization working for cause of women in general and/or a person familiar with the issues of sexual harassment. This member would be an outsider, i.e. not from the organization.[19]

Local Complaints Committee (“LCC”)

The District Office at every district is responsible for constituting a LCC to enable women in unorganized sector or small establishment to work in an environment that which is free from sexual harassment.[20] The LCC shall entertain a complaint in the following cases:

• Where the complaint concerning sexual harassment is received from a woman working in an organization that has less than 10 workers,
• Where the complaint is against the employer of an organization himself,
• Where the complainant is a domestic worker.

Membership and Functioning of theLCC

The District Officer shall constitute LCC which shall consist of the following members:

• The LCC should be headed by a chairperson who is nominated from amongst the eminent women in the field of social work and committed to the cause of women.
• The members should be nominated from the women working in the block, taluka, tehsil, ward or municipality of in the district.
• Two members should be nominated from such NGO/organisations which are committed to the cause of women or familiar with the issues related to sexual harassment, provided that at least one of the two members must be a woman and at least one of the members must have a background of law or legal knowledge.
• An ex officio member who is the concerned officer dealing with social welfare or woman and child development in the district.[21]

1. Confidentiality under SHWWA

It is contemplated under the SHWWA that notwithstanding anything contained in the Right to Information Act, 2005, the contents of a complaint including but not limited to the identity of the victim, respondent and/or witnesses, and/or any information concerning conciliation and/or recommendations of ICC/LCC, or action taken by the employer or District Officer, should be treated as confidential and its disclosure by any member or by the presiding officer to the media will have him/her liable for disqualification from the membership of the committee.[22]

1. Procedure for making a Complaint under SHWWA

Under the provision contained in SHWWA, the stipulated time period to make a complaint is three months from the date of an incident or three months from the date of last incident wherein there are series of incidents, which time period could be extended by ICC or LCC in the event that there existed circumstances beyond the control of complainant preventing her from making her complaint within stipulated time.[23] The complaint should be made in writing. In case the complainant is unable to file her complaint owing to her physical or mental state or death or otherwise, her legal heirs are eligible to file the complaint.[24]

1. Procedure by ICC/LCC

1. Where Conciliation is possible

It is contemplated in SHWWA that prior to initiation of an inquiry into the Complaint, the ICC or LCC, as the case may be, must endeavor to resolve the issue by way of conciliation at the request of the aggrieved woman. [25] However, the basis of conciliation cannot be monetary settlement. [26] In the event that the parties arrive at conciliation, the settlement between the parties shall be final and no further inquiry shall be conducted by ICC/LCC. [27] However, in the event, the respondent does not comply with the terms of settlement the ICC/LCC may embark on its inquiry and/or may forward the complaint to police.[28] The ICC or LCC shall record the settlement arrived between the parties and forward the report to the employer or District Officer, as the case may be, to take action as per recommendation of ICC/LCC.[29]

2. Where Conciliation is not possible

In the event that conciliation cannot be arrived between the parties, ICC/LCC shall initiate an enquiry in accordance with the service rules of respondent (where applicable).[30] ICC/LCC shall observe the principles of natural justice and give an opportunity of being heard to the parties.[31] ICC/LCC, while conducting an inquiry, are vested with powers similar to a civil court, i.e., to summon and enforce attendance of a witness, examine him, call for providing documents and materials etc.[32] it is further contemplated that ICC/LCC shall complete the inquiry within 90 days.[33] Upon completion of inquiry, it is contemplated that ICC/LCC shall submit its report (containing findings as well as recommendations) to the District officer or employer within 10 days of completion of the inquiry.[34] In the event that the ICC/LCC arrives at a finding of innocence of respondent, it shall recommend to the employer/district officer that no action is to be taken against respondent.[35] In the event that ICC/LCC arrives at a finding of guilt of respondent, it shall give its recommendations in its report for actions to be taken against the respondent in terms of Section 13(3) read with Section 15 of SHWWA. The employer or the District Officer is bound to take action as per inquiry report of ICC/LCC within 60 days of the receipt of inquiry report.[36] In the event that ICC/LCC arrives at a conclusion that the complaint made by the complainant is false or malicious, ICC/LCC may recommend penalty to be levied on the complainant as per the applicable service rules.[37] However, the malicious intent has to be established by an inquiry.[38] Moreover, mere inability to substantiate a complaint will not attract this provision.[39]

In case of a domestic worker, the LCC shall forward the complaint to police within 7 days for registering a case under Section 509 IPC or other relevant provisions of law in case the complaint discloses the existence of a prima facie case.[40]

1. Appeal

Any person aggrieved by the recommendations or non-implementation of the recommendations may prefer an appeal to the court or tribunal in accordance with the service rules or otherwise within a period of ninety days of the recommendations.

1. OTHER DUTIES OF EMPLOYER UNDER SHWWA [Institutions redressing sexual harassment and abuse]

Section 19, SHWWA contemplates that every employer shall have the following duties:

1. provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
2. display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting. the Internal Committee under subsection (1 ) of section 4;
3. 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;
4. 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;
5. assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
6. make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;
7. provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;
8. cause to initiate action, under the Indian Penal Code 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 report by the Internal Committee.[41]

It is also contemplated under Section 22, SHWWA that an employer shall prepare an annual report in regard to the number of cases filed and disposal thereof.

1. PENALTIES TO BE IMPOSED ON THE EMPLOYER 

An employer may be punished with a fine which may extend to fifty thousand rupees in the event that he fails to constitute an ICC under section 4, or take action under sections 13, 14 and 22 of SHWWA, and/or contravenes or abets to contravene other provisions of SHWWA or any rules made thereunder.[42] In the event of subsequent conviction of the employer of the same offence, the employer shall be punished with twice the punishment which may have been imposed earlier.[43] Further, his license or registration to carry on business or activity may also be cancelled or revoked or not renewed.[44]

• CONCLUSION

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 necessarily entails the employers to create and communicate a detailed policy against sexual harassment against women at the workplace and constitution of complaints committee in order to provide a sufficient redressal mechanism to women who are victims of sexual harassment. The employers are further required to organize orientation and awareness programs from time to time to sensitize their employees in order to prevent the incidents of sexual harassment at workplace. The employers are further required to ensure proper capacity and skill building of the members of their Internal Complaints Committee, which can also be achieved by organizing training sessions for the members of Internal Complaints Committee, wherein training could be imparted by experienced social workers or lawyers committed to the cause of women. It is also important to widely publicize the names and contact details of the members of the Internal Complaints Committee at common areas, notice boards as well as on the website of the organisation to enable easy access and easy reporting of incidents of sexual harassment of women at workplace. Thus, the employer should have a policy that: (1) prohibits unwelcome behavior/ workplace sexual harassment; (2) champions prevention of sexual harassment through orientation, awareness and sensitization sessions; and (3) provides a detailed framework for redress.

“...the time has come when women must be able to feel liberated and emancipated from what could be fundamentally oppressive conditions against which an autonomous choice of freedom can be exercised and made available by women. This is sexual autonomy in the fullest degree”

(Late Chief Justice J.S. Verma, Justice Verma Committee Report, 2013)

[1] Meera Kaura Patel, Advocate on Record, Supreme Court of India is reputed advocate practicing in the Supreme Court of India, High Court of Delhi and the district courts of Delhi, who is representing various clients involved in civil, commercial, criminal and matrimonial matters. She has represented several clients involved in sexual harassment cases and has advised many corporates in cases pertaining to sexual harassment at workplace. She advocates gender justice and gender equality and is also representing the first transsexual involved in a matrimonial battle, i.e. Bollywood’s Bobby Darling, and is also the most sought after lawyer in cases involving ragging and bullying in schools/colleges. She is also the member of Sexual Harassment Committee at Ramjas School, Delhi. 

Ms. Sakshi Ranjan, student, Amity Law School, GGSIP University, Research Associate (Intern) has assisted Mrs. Patel with research required for writing this article.

[2] Rema Nagaranjan, TNN, November 29, 2013, “Women account for just 22% of the workforce in India” (available at https://timesofindia.indiatimes.com/india/Women-account-for-just-22-of-workforce-in-India/articleshow/26548372.cms). Also see, Women and Men in India, 2012, 14^th issue, a publication by Central Statistics Office under the Ministry of Statistics and Programme Implementation, Government of India.

[3] Section 354, Indian Penal Code (“Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine”). Section 509, Indian Penal Code (“Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.”)

[4] (1997) 6 SCC 241.

[5] Section 2(n), SHWWA.

[6] 294. Obscene acts and songs.—Whoever, to the annoyance of others—(a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

[7] 354B. Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.

[8] 354C. Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

[9] 354D. (1) Any man who— (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

1. ii) monitors the use by a woman of the internet, email or any other form of electronic communication; or (iii) watches or spies on a woman in any manner, that results in a fear of violence or serious alarm or distress in the mind of such woman, or interferes with the mental peace of the woman, commits the offence of stalking: Provided that such conduct shall not amount to stalking if the man who pursued it proves that— (i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or (iii) in the particular circumstances such conduct was reasonable and justified.

[10] Section 2(o), SHWWA.

[11] Section 2(p), SHWWA.

[12] Section 2(a), SHWWA.

[13] Section 2(f), SHWWA.

^[14] Section 2(g), SHWWA.

^[15] Section 2(g), SHWWA.

^[16] Section 2(g), SHWWA.

[17] Section 2(e), SHWWA.

[18] Section 4(1), SHWWA. In Ms. G v. ISG Novasoft Technologies Ltd. Madras High Court (Crl.R.C.No.370 of 2014 order dated 02.09. 2014. Original Petition No.463 of 2012, the Madras High Court awarded Rs. 1.68 crores in damages to an employee for the non-constitution of a Complaints Committee by the employer, as per the Vishaka Guidelines.

[19] Section 4(2), SHWWA.

[20] Section 6(1), SHWWA.

[21] Section 7(1), SHWWA.

[22] Section 16, SHWWA.

[23] Section 9(1), SHWWA.

[24] Section 9(2), SHWWA.

[25] Section 10, SHWWA.

[26] Section 10, SHWWA.

[27] Section 10, SHWWA.

[28] Section 11(1), SHWWA.

[29] Section 10, SHWWA.

[30] Section 11, SHWWA.

[31] Section 11 (1), SHWWA.

[32] Section 11(3), SHWWA.

[33] Section 11(4), SHWWA.

[34] Section 13, SHWWA.

[35] Section 13(2), SHWWA.

[36] Section 13 (4), SHWWA.

[37] Section 14, SHWWA.

[38] Section 14, SHWWA.

[39] Section 14, SHWWA.

[40] Section 11(1), SHWWA.

[41] Section 19, SHWWA.

[42] Section 26, SHWWA.

[43] Section 26(2)(i), SHWWA.

[44] Section 26(2)(i), SHWWA.

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