Introduction
Sexual harassment can be defined as making some kind of sexual advances which are unwanted or unwelcomed. Most women around the world are subject sexual harassment at their workplace and the problem is not stopping despite of various steps taken. It has a negative affect not only on the person being subjected to it but also affects others and discourages them from taking up jobs or to work care freely.
In broader sense sexual harassment of women at workplace can be understood as some kind of violent behaviour and discrimination of women at their workplace but in narrower sense it can be understood as unwelcome sexual advances or favours, making any sexual remark which tends to create hostile environment at workplace.
In India Legislature and Judiciary have played in development of laws to prevent such exploitation and harassment to women at workplaces.
Development of Law to Prevent Harassment at Workplace
Sexual harassment work place is not something new it existed since a long time but was most of the time went unvoiced due to conservatism in the society or dominance of the harasser. But as the women in society realised their rights and became more empowered the issue came into highlight and compelled society at large to deal with the issue. Since 1980s, harassment of women at workplace has remained a crucial issue and Forum Against Oppression of Women along with number of NGOs played an important role for its prevention.
Main development in this field took place after the landmark case of Vishakha vs State of Rajasthan in which Supreme Court laid down certain guidelines to prevent Sexual harassment at workplace and also put an obligation on the government for proper implementation of those guidelines. As a result a result an Act entitled Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act) was enacted in 2013.
Vishakha Case and Aftermath
In Vishakha and anothers V. State of Rajasthan, a writ petition was filed before the Supreme Court by some social workers and NGO called Vishakha seeking prevention of sexual harassment of working women in their workplaces through judicial intervention and to fill the gap in existing laws and legislations. Before this the only remedy that woman had were under 354 and 509 IPC.
The petition was filed after an incident of gang rape of a social activist Bhanwari Devi in a village of Rajasthan, who worked and fought against the practice of child marriage as a part of her job as saathin. The Supreme Court observed that every incident of sexual harassment of women at work place violates Fundamental rights and freedoms of a woman. It is against gender equality, right to life and liberty. The court further issued certain guidelines which were derived from Convention on the Elimination of all forms of Discrimination Against Women, which would be applicable to all the employers until legislature enacted suitable laws to replace them. The guidelines provided for duties of employer, it defined sexual harassment, complaint mechanism, complaints committee, third party harassment and mentioned various sections under which person can be liable for sexual harassment at workplace.
Later to ensure proper implementation of the guidelines laid down in the vishakha case an Act was enacted by the legislature by the name of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act). The Act under section 2(n) defined sexual harassment which included following unwelcome acts or behaviour: i) physical contact and advances, ii) demand or request of sexual favours, iii) making sexually coloured marks, iv) showing pornography, v) any other verbal or non verbal conduct of sexual nature. The Act also contains provisions for creation of Internal Complaints Committee (ICC) and the Local Complaints Committee (LCC). Any women aggrieved may make in writing, a complaint of sexual harassment at workplace to these committees and the committees shall take necessary measures as per the provisions of the Act.
Formation and Working of the Committees
The ICC shall be formed by the employer of a workplace consisting of a presiding officer who shall be a woman and be in seniority among the employees and not less than two other members from the employees and one member from some NGO working in the field of empowerment of women. ICC shall have half of its members as women and shall be appointed for a period of 3 years.
The LCC shall be formed in all districts by a District officer (as appointed by the appropriate government according to provisions of the Act). It shall consist of a chairperson who shall be an eminent woman in the field of social work and one member from women working in taluka or tehsil or municipality or block and two other members from NGOs. Half members of LCC shall be women and period is of 3 years.
The Act provides that aggrieved women can make a complaint to ICC or to LCC within a period of 3 years from incident or if there are many instances then within a period of 3 months. The ICC shall make inquiry into the complaint according to the provisions of service rules and LCC shall if any prima facie case exist, shall forward the complaint to police so that a case under section 509 of IPC can be made. Once ICC or LCC completes its investigation it shall provide report to the employer or to the District officer and shall suggest that no action is required if case is not proved and if proved shall recommend actions to employer or the District officer including deduction of salary or firing from job.
Remedies Available to Victim under the Act
Complaint
to ICC
Any distressed woman can file the complaint of sexual
harassment to the Internal Committee within 3 months of the occurrence. Before
initiating the inquiry IC may try to concile between both the parties if the
distressed woman requests to do the same. If conciliation is impossible, then
IC will inquire into the complaint and give both parties a chance to be heard
and will complete the inquiry within 90 days. After
the inquiry, IC needs to make an inquiry report in 10 days by giving recommendations
on the matter. It should also give a copy of the report to the organization or
company and the parties concerned. The organization or company need to act
according to the recommendations in 60 days. According to the act, if a victim
is not satisfied with the findings of IC, she can appeal to a tribunal or
court. IC is assigned with the responsibility of submitting an annual report on
the number of cases that have taken place and got solved during the year to the
company. The company is further mandated to include this given information in
its annual report. In the cases of companies which do not prepare their annual
report, the companies are required to inform the number of such cases to the
District Officer.
Relief to Victim
Internal Committee, according to the section 12 of the act can recommend to the
employer to provide some kind of relief to the victim, such as transfer the
distressed woman or the respondent to any other workplace or grant paid leave
to the distressed woman up to a period of three months, during the pendency of
inquiry, but only in the cases where a victim makes a written request. For
further relief to the victims that can be provided during the pendency of
inquiry, such as warning the respondent from reporting on the work performance
of the distressed woman or writing her confidential report etc.
Compensation
If the
complaint against the harasser is proven, victim is entitled to receive
compensation from him/her. According to section 15 of the act, IC may keep the
below things in mind and determine the compensation-
a) Mental trauma, suffering, pain and emotional distress caused to the victim.
b) The loss in career prospects
c) Medical expenses sustained by the victim for physical or psychiatric
treatment.
d) Income and financial status of the respondent.
e) The possibility of such payment in lump sum or in installments.
Current Scenario and Deficiencies
Vishakha guidelines were not in itself sufficient to prevent harassment at
workplace as a result legislature enacted Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal Act). The Act has played an
important role by filing the gap in relation to sexual harassment at work place
laws. Act by providing for internal and local committees has given hearing
machinery to the women; also it has put various obligation and duties on part
of the employer to maintain a safe work atmosphere for employees. It has also
enlightened the female employees about their rights, remedies and redressal
mechanism available to them against such harassment.
But, years after enforcement of the act, sexual harassment of women at
workplace still persist and are a crucial issue or challenge before the private
sector. There are various reasons to this; first companies prefer to give
online training and awareness contradictory to method published by government
which provides for classroom training. Online training doesn’t prove to be
effective and is merely performed as a formality and the content is also not of
much use. Second, the external member to be selected as part of of the
committee as provided in the act should be one working in an NGO or associated to
social work in field of prevention of harassment of women but employers often
ignore such criteria. Third, most of the female employees do not report their
complaints due to lack of awareness, stigma, embarrassment, fear or ignorance.
This shows the lack of trust women have on the system and inadequacy of
employer to assure women to bring up their problems freely. Fourth, employer is
careless about his responsibilities and duties.
Conclusion
The condition and situation of women at workplace has improved from what it
was before. Though cases of harassment still persist and there is long way to
go and enactment of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal Act) is the step in the right direction to prevent
such harassment. To improve the condition it is necessary that employers need
to be very responsible and understand their roles and duties. Also the role of
the committees should be widened and should not be just limited to receiving
complaints but also to keep an eye and ensure safe working environment. Women also
need to understand their responsibility to report matters to the committees and
not to be hesitant in filing a complaint against an act of harassment.