The Sexual Harassment Act if implemented well would go a long way in protecting women employees. Anagha Sarpotdar and Adv Mini Mathew, speaking at a Moneylife Foundation seminar, explained issues of workplace sexual harassment and guided on how to deal with such cases

Media coverage of the complaint against Tarun Tejpal and Justice Ganguly (retired Supreme court judge) have only brought home the fact that most people are clueless about the stringent new provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act).

Moneylife Foundation invited Anagha Sarpotdar, a consultant of gender and socio-legal issues and Advocate Mini Mathew to address issues related with sexual harassment at workplace in its 192nd seminar held on 18 December 2013 at the Indiabulls Finance Centre, Mumbai.

Ms Sarpotdar explained the overview of the Act and its obligations and implications for companies and employees. Adv Mathew, while explaining the impact of the Act on organisations, structure of anti-sexual harassment committees and compliance requirements, reminded the audience about Bhanwari Devi still not getting any justice. It was the Bhanwari Devi case, after which Vishakha and other women’s groups filed the public interest litigation (PIL) in the Supreme Court resulting in what are popularly known as the Vishaka Guidelines. Following the 16^th December Delhi gang rape and subsequent protests, the government brought acts of sexual harassment under the Criminal Law.

Ms Sarpotdar said, the law casts an obligation upon the employer to address the grievances in respect of sexual harassment at workplace in a time-bound manner, which in several cases may not be practically possible as the employees or witnesses involved may not easily or readily co-operate.

Several times repeated complaints about sexual harassment to immediate seniors and the human resources (HR) department yield no result. “In fact, senior management ignore the sexual harassment complaint and sometimes encourage it. Even at some places harassers are backed and supported by the companies by footing their legal bills,” Ms Sarpotdar said.

She said, the definition of 'aggrieved woman' in the Act does not make a reference to victimisation on the part of the employer of the employee who has made the complaint of harassment, which would be fairly common in such situations. Also, in order to cover some of the technological developments, words like 'verbal, textual, physical, graphic or electronic actions' should have been added in the definition of 'sexual harassment', Ms Sarpotdar said.

The Act mandates the employer to provide a safe working environment and display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee (ICC).

Ms Sarpotdar said there are no well laid policies for employers for dealing with complaints of sexual harassment. There is zero or low awareness amongst employers about these policies and most of the policies are not in sync with Vishakha guidelines. Even external agencies like Labour Commissioner, Women Commissions and Police are not well informed about sexual harassment complaints, especially the Vishakha guidelines.

She said Labour Commissioner has not complied with the Medha Kotwal interim order and judgement, while Women Commissions are toothless and inefficient and Police are clueless about Vishakha guidelines. 

The Supreme Court, in its landmark judgment in Vishaka and others vs. State of Rajasthan (Vishaka Judgement), laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women. These guidelines are known as Vishakha Guidelines.

Adv Mathew said, “The Act stipulates that a woman shall not be subjected to sexual harassment at any workplace, including organised as well unorganised sector. As per the Act, a workplace also covers within its scope places visited by employees during the course of employment or for reasons arising out of employment - including transportation provided by the employer for the purpose of commuting to and from the place of employment”.

“Sexual Harassment Act has been enacted with the objective of providing women protection against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment. Sexual harassment is considered as a violation of the fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity as per Article 21 of the Constitution. It has also been considered as a violation of a right to practice or to carry out any occupation, trade or business under Article 19(1)(g) of the Constitution, which includes a right to a safe environment free from harassment,” she said.

“The definition of sexual harassment includes any unwelcome sexually determined behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical verbal or non-verbal conduct of sexual nature.”

Adv Mathew said, as per the Act, employers are mandated to set up an internal complaints committee (ICC) at each office or branch where there are at least 10 employees. Similarly, the government is also required to set up a local complaints committee (LCC) at the district level. The LCC would investigate complaints from establishments where ICC has not been constituted or if the complaint is against the employer. Both the ICC and LCC are required to follow process and inquire into the complaints in time bound manner, she said.

Both the ICC and LCC, at the request of the complainant, can recommend interim relief measures like transfer of the aggrieved woman or the respondent to any other workplace; or granting leave to the aggrieved woman up to a period of three months in addition to her regular statutory or contractual leave entitlement.

Timeline:

1. A written complaint has to be filed by the female employee within three months of the date of the incident.
2. The inquiry has to be completed within 90 days.
3. The inquiry report has to be issued within 10 days from the date of completion of inquiry.
4. Employer is required to act on the recommendations of the committee within 60 days of receipt of the inquiry report.
5. Appeal against the decision of the committee is allowed within 90 days of the date of recommendations.

If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Act prescribes a monetary penalty of up to Rs50,000.

Adv Mathew said, a new section is added in the Indian Penal Code through the Criminal Law (Amendment) Act, 2013 enlisting the acts which constitute the offence of sexual harassment and further envisages penalty / punishment for such acts. “A man committing an offence under this section is punishable with imprisonment, the term of which may range between one to three years or with fine or both. Since the amendment criminalizes all acts of sexual harassment, employers are mandated to report any offences of sexual harassment to the appropriate authorities,” she added.

According to Adv Mathew said, in order to ensure that the Act does not get misused, certain provisions for action against false or malicious complainants have been made.