January 24, 2022

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Policy analysis – the Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013

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This article has been written by Virendra Bapat.

Table of Contents

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Sexual harassment is defined as disrespectful, humiliating, or intimidating conduct that might take the form of written, oral, physical, or digital communication. In the twenty-first century, where both men and women work in the same business, it has been discovered that women are subjected to certain strange office conduct from their coworkers. Women must contend with an insecure and unfriendly atmosphere that discourages and demotivates women’s involvement and productivity. 

This has been a worldwide issue and has spread like a virus across culture, society, geographical barriers, race, class, and caste. In India, every 10th minute a woman is sexually harassed. Despite the fact that the phrase “sexual harassment” was not officially used in any Indian legislation prior to 1997, sexual harassment-related activity was made illegal under many provisions of the Indian Penal Code. Therefore, in order to safeguard women’s basic rights under Articles 14, 15, and 21 of the Indian constitution there was a need for stricter and more consistent legislation. Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act, 2013 was enacted to cater for the interests of women in the workplace. 

Since independence, sexual harassment of women at the workplace has been a raging issue in India. In 1990, an organization named Baailancho Saad rallied against Goa’s then-chief minister to resign, who was accused of harassing his personal secretary. The Organization also filed a PIL against the definition of rape as provided under IPC and demanded an amendment in the narrow definition. However, it was Bhanwari Devi’s fight for justice that brought the issue of sexual harassment at the workplace under the spotlight and paved a way for the culmination of the “Vishakha Guidelines”. The only way to file a case was under Section-354 of the Indian Penal Code, 1860 which resolved criminal assault of women. Section-509– which punished individuals who use conduct or expression with the intent to offend a woman’s modesty.

Vishakha and others v. The State of Rajasthan

Bhanwari Devi was a Dalit woman who worked for the Rajasthan government’s Rural Development Program as a social worker, she was gang-raped in 1992. This case established the basis for the Sexual Harassment at Workplace rule (1997). This exposed the extent of sexual harassment in India’s workplaces. It struck a chord with people all around the country, highlighting the vulnerabilities that working women experience in the workplace. 

The Supreme Court has ordered that laws be enacted to combat sexual harassment in the workplace. The Vishaka Guidelines took source and inspiration from the CEDAW, Sc. 2(d) of the Protection of Human Rights Act, 1993. The Supreme Court determined that every organization should have an ethical code in place, as well as a system for implementing the code in situations that fall under its purview.

In 1977, a three-judge panel led issued a breakthrough and landmark decision based on the Convention on the Elimination of All Forms of Discrimination Against Women (signed by India in 1980), which offered the first fundamental definition of sexual harassment at work. After Vishaka’s ruling in 1997, there were no attempts to pass legislation for the following six years. The Supreme Court determined that all companies should have a sexual harassment code, as well as an appropriate framework for enforcing instances that come under the code’s jurisdiction. These guidelines were used in the case of Apparel Export Promotion Council v. A.K Chopra.

These guidelines were created with the primary objective of providing a mechanism for workplace sexual misconduct redress and grievance processes. These recommendations inspired the Sexual Harassment of Women at Workplace (Redressal, Prohibition, and Prevention) Act of 2013. 

The harassment statute took the government 17 years to pass. The Act became effective on December 9, 2013. The Supreme Court of India’s Vishaka Guidelines for the Prevention of Sexual Harassment are superseded by this legislation. The Act is crucial since it covers the many sorts of sexual assault and how a woman can report it.

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The objective of the Sexual Harassment Act of 2013 was to make the workplace a safer place for women and to protect them from sexual harassment. It also functions as a forum for both avoiding and addressing problems. “Sexual harassment has been ruled a breach of a woman’s fundamental right to equality, as guaranteed by Articles 14 and 15, and her right to life and dignity, as guaranteed by Article 1. Sexual harassment has also been deemed a violation of the freedom to practice or carry out any vocation, trade, or business, which includes the right to a safe workplace, under Article 19(1) (g) of the Constitution.”

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According to the Sexual Harassment of Women at Workplace Conduct of 2013, any uninvited and sexual act is deemed sexual harassment, which includes “quid pro quo” harassment. It is explained as unwelcome sexual physical, verbal, or nonverbal activity, such as physical contact and approaches, demand or desire for sexual favours, making sexually tinged comments, showing pornography, and any other unwanted sexual physical, verbal, or nonverbal activity. The concept of “extended workplace” was born as a consequence of the POSH legislation, which defines “workplace” as any site where an employee goes as a consequence of work or in the scope of employment, including transportation offered by the organization for the purpose of travel.

Committees for Complaints

The Act’s most prominent component is that it requires any corporation or organization with more than 10 workers to create an Internal Allegations Committee to hear and address sexual harassment complaints. The Internal Complaint Committee must be established in precise accordance with the provisions of Ruchika Singh Chhabra vs M/s Air France India and Anr. The Indian Ministry for Women introduced an online platform, ‘SHe-Box,’ in November 2017 that directs complaints to the employer or organization’s IC. The Act mandates the District Officer to organize a Local Complaint Committee in each district where there are less than ten workers.

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Duties and Obligations of Employer

An employer is defined in Section 2(g) of the Act as a person who is in charge of the place of works management, monitoring, and regulation. It stipulates that the employer shall disclose the legal ramifications of engaging in activities that may constitute sexual harassment, as well as the composition of the Internal Complaint Committee. It is a legal need to handle sexual harassment as a violation of service regulations. If he fails to comply with the regulations a penalty of 50000 RS is recommended or it can even lead to cancellation as per Section 26 of the Act.

Procedure to file a complaint 

An aggrieved female has three months from the date of the tragedy to make a written complaint with the ICC, and three months from the last such event in the case of a series of such mishaps. The Committee, on the other hand, can pardon any delay in bringing the complaint for up to three months. According to Tejinder Kaur v. UOI, the time limitation can be extended if it can be proven that the lady was unable to register the complaint within the statutory time frame due to extenuating circumstances. If the aggrieved female is mentally or physically unable, her legal heirs may submit a complaint on her behalf. Before initiating an inquiry, the committee can attempt to address the situation through conciliation between her and the responder, and if a settlement is achieved, no further inquiry will be conducted. If the suggested conciliation fails to produce any results, a new investigation will be conducted. When both parties are employees, natural justice principles apply, and both parties are heard and given the opportunity to submit remarks in opposition to the committee’s findings. Committee has the same authority as a civil court while directing the investigation. The committee has 90 days to complete the probe.

Nature of complaint

If the Internal Committee finds that the accusation against the defendant is fallacious, or that the aggrieved person or any other person making the complaint did so knowing it was fallacious, or that the female making the complaint generated any misleading document, it can lead to firing the women. If the accusation against the defendant is ascertained, the committee will recommend to the District Officer that sexual harassment be treated as improper conduct in compliance with the provisions of the rules, or in the absence of such rules, and that the aggrieved woman should be compensated. Any person who is harmed by the Internal Committee’s guidelines or their inability to be implemented may submit an appeal with the court within 90 days following the guidelines, if the legislative conditions are followed.

The identities of the respondent, appellant and witness, as well as their addresses, cannot be revealed. However, under the terms of this Act, any victim’s justice can be shared.

The number of incidents of sexual assault in our nation is continuously rising. Whether we are male, female, or transgender, we all endure physical or mental trauma at some point in our lives. However, for different reasons, many of us do not complain and keep silent. Job security and promotion stability are the main reasons for this. When the fear of the powerful at the top is combined with a lack of organization, cases are disregarded and unresolved. As a result, the workplace becomes unclean and unpleasant. This measure appears to be fine in principle, and if enacted, it would provide women in the workplace a boost and a sense of security. A coin, however, always has two sides:

  • The Act is biased against women since it is centered on women. Because the statute makes no mention of males as injured parties, males and transgender individuals are unable to seek remedy under its provisions. Furthermore, the act’s definition of “respondent” does not specify whether or not a woman or transgender person can be a preparator. As a result, the legislation is hazy and confusing.
  • The three-month restriction period, which can be increased up to six months based on the situation, strikes me as unfair. Sexual harassment can be an occurrence that causes the aggrieved great pain and anguish, preventing the person from submitting a complaint. As a result, the time limit must be extended to allow the aggrieved to seek remedy. Furthermore, the statute contains no provisions for acting on matters retroactively.
  • The effectiveness of ICCs is questionable. Many times, IC members are unwilling to initiate an investigation of senior members of the organization, generating worries about the redressal committee’s neutrality. Furthermore, internal members must make up the majority of the committee, which might lead to a biased judgement. Frequently, committee members are unaware of the legal requirements for cross-examination. As a result, ICC must include at least one member who is unaffiliated with the firm and is well-versed in the fields of law and women’s rights.

Nevertheless, the #MeToo movement gained pace in India after actress Tanushree Dutta accused a fellow actor of inappropriate sexual behaviour, prompting additional women to speak up. Regardless of these circumstances, it is critical that democratic organs execute and enforce legislation in a strict manner in order to give a comprehensive solution to the problem of workplace sexual harassment.

Amendments in the Posh Act 2019

In 2019, the Department of Women Development and Child Welfare issued a general notice requiring any Telangana company with ten or more employees to register its IC with the State Shebox portal by July 15, 2019. Simply so that officials may keep a closer eye on the region’s compliance status.

The Maharashtra government issued a similar notice, requesting that all businesses complete and submit a form detailing their compliance status and internal committee by July 20, 2019, to the Sub-Divisional Magistrate.

Amendment of the Sexual Harassment At Workplace Act in May 2016

Sections 6, 7 and 24 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 have been amended as follows: 

  1. For the words “Local Complaints Committee,” wherever they occur, the words “Local Committee” shall be substituted;
  2. For the words “Internal Complaints Committee,” wherever they occur, the words “Internal Committee” shall be substituted.”

The work of the sexual harassment committees will not be confined to handling complaints, but will also encompass prevention and a number of other measures.

As the IC’s responsibilities have grown, they must increasingly concentrate on prevention and prohibition:

  • Make sexual harassment in the workplace a no-tolerance policy.
  • Teach your workers, managers, and committee how to spot and respond to inappropriate behaviour.
  • Maintain an open-door policy! Staff should be able to ask inquiries and voice their concerns.
  • Be proactive in ensuring that IC strives to provide a safe, secure, and inviting workplace for its workers.

Sexual harassment allegations in the workplace not only harm an employer’s reputation, but could put them in legal trouble. Workplace sexual harassment is, without a question, one of the most delicate issues that must be treated with greatest caution and respect. Rather than performing a sham of enforcement under the POSH Act, employers must be really concerned about the wellbeing of women at work, according to the Bombay High Court in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University.

Somaya Gupta v. Jawaharlal Nehru University and Others, in this case, the Delhi High Court held that mere suspicion of prejudice is insufficient to disqualify a member from the IC. The court emphasized the importance of creating an actual likelihood of bias rather than a mere fear, noting prior Supreme Court rulings in this respect.

In Dr. T.V. Ramakrishnan v. Kannur University, the Kerala High Court overruled the IC’s order to terminate the accused, ruling that the IC had not followed the law’s protocol in conducting the inquiry. Until the investigation was concluded, the accused in this case was not provided a copy of the complaint or the IC’s conclusions.

As a result, it is clear that the courts have assumed responsibility for ensuring that this act is correctly understood and implemented in all firms, and that no unjust prejudice is maintained against both sides.

Indian laws have progressed from having no redress mechanism for workplace sexual harassment to having a robust process. Despite current regulations, sexual harassment at work continues to be a common problem in India. Laws alone will not solve the problem; public awareness and effective execution of these regulations are required. The harm done as a result of the state’s indifference is terrible and permanent.

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